This article is written by Shristi Borthakur, a second-year student of Symbiosis Law School NOIDA, where she discusses the legal implications of wife denying conjugal rights to the husband. Know all about Restitution of Conjugal Rights.

The Merriam-Webster Dictionary defines conjugal rights as “the sexual rights or privileges implied by, and involved in, the marriage relationship; the right of sexual intercourse between husband and wife.” It can also be implied as a right to stay together, the right of one spouse to the companionship of the other.

What are the legal provisions on restitution of conjugal rights in India?

The different personal laws in India contain the provision of restitution of conjugal rights. The general wording in all these acts provides that if either the husband or the wife withdraws from the society of the other, without reasonable excuse, the aggrieved party may approach the Court for restitution of conjugal rights. Provisions for restitution of conjugal as per different personal laws are as follows-

• S.9, Hindu Marriage Act, 1955
• S. 22, Special Marriage Act, 1954
• S. 32, Indian Divorce Act, 1869
• S. 36, The Parsi Marriage and Divorce Act, 1936

What is the provision under Muslim law?

The concept of restitution of conjugal rights is conceptualized in the form of a civil suit, under general law, as opposed to a separate petition in other laws, as follows-

“Where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of the marriage, the court may decree restitution of conjugal rights, and may put either part securing to the other the enjoyment of his or her rights.”

What are the rights available to the husband in this regard?

Customary practice prevalent in Indian society denotes that the wife stays with the husband post-marriage. The husband has the right to require his wife to live with him, and the corresponding duty of the wife to live with her husband. However, this cannot always be the case, and under such circumstances, conjugal rights accrue. Upon such withdrawal from the society of the husband, without any reasonable cause, the husband can file a petition for restitution of conjugal rights. Where the court is satisfied with the statements made and there is no other legal bar to such decree, the petition may be granted.

What does ‘withdrawal from society’ mean?

To proceed with establishing the area wherein the conjugal rights accrue, it is essential to draw a boundary on such area. ‘Withdrawal from society’ does not necessarily have to mean complete desertion or living separately. It can also mean-

• Withdrawal from sexual intercourse,
• Non-cooperation in the performance of marital obligations,
• Intention to abandon indefinitely
• Cessation of cohabitation by voluntary act of the Respondent-wife

Reasonable Cause

The burden of proof in matters of conjugal rights is two-fold. First, the petitioner-husband need to prove that the wife has withdrawn from his society. It shifts to the respondent-wife to show reasonable cause for doing so. A reasonable cause may include any matrimonial misconduct or any act or omission that makes it impossible for the Respondent-wife to live with the Petitioner-husband. Where the wife fails to prove reasonable cause, a decree of restitution can be passed in favor of the husband stating the wife to resume cohabitation with the husband. Where it is proven that the wife has reasonable and valid grounds for doing so, the petition will be dismissed. Moreover, this will also be the case where the husband himself has caused a situation that debars the husband from seeking the relief. One cannot take advantage of his own wrong.

Under what circumstances is the wife’s withdrawal from the society of the husband justified?

• When husband remarries

All the personal laws, except that in case of Muslims, hold bigamy to be to be void. The conjugal rights are available only in a subsisting valid marriage. Thus, if a man takes on another wife while his marriage with the first wife is subsisting, he loses the right to file a petition for restitution of conjugal rights against such second wife. Also, if upon such act of the husband, the first wife withdraws such matrimonial society, it would amount to a reasonable cause to do so, as such action amounts to cruelty, and also a violation of marital duties. Here, in fact, the first wife has the right to file for restitution of conjugal rights.

Even in the case of Muslim Law, where the law allows polygamy to the husband, it should be done in compliance with provisions of the Sharia. The idea here is that where the husband remarries, he should equitably maintain the first/ existing wife(s). Where such equity and duty is violated by the husband, the wife has a reasonable case. Under such circumstances, the act of marrying another can also amount to cruelty if the husband falters on his matrimonial obligations.

In Kothar Beevi v. Aminuddin, the Madras High Court denied the relief of restitution of conjugal rights to a husband who remarried during the pendency of the suit. The relevant part of the judgment is as follows-

“Under the circumstances, it could not be unreasonable to hold that after the plaintiff-husband contracted a second marriage, the appellant wife is reasonable and justifiable in staying away from her husband. This Court while bearing in mind, the right of the Muslim husband as to contract of marriage more than once, however, it has to be borne in mind that the decision in a suit for restitution of conjugal rights does not entirely depend upon the right of the Muslim husband. The Court should also consider whether it makes it inequitable for it to compel the wife to live with her husband. Our notions of law in that regard have to be held in such a way so as to bring them in conformity with modern social conditions.”

• When conduct of husband makes it impossible for the wife to live with the husband.

The law on restitution of conjugal rights is not born out of any existing custom. It came into the legal picture during the British Raj having its roots in feudal England, where marriage was considered as a property deal and wife was part of man’s possession like other chattels. However, in the earliest and landmark case of Moonshi Buzloor Ruheem v. Shamsonnissa Begum, the absoluteness of this right was curtailed. In the relevant part of the judgment, it was held that-

“If there be cruelty to a degree rendering it unsafe for the wife to return to her husband’s dominion, the Court will refuse to send her back to his House ; so also, if there be a gross failure by the Husband of the performance of obligations which the marriage contract imposes on him for the benefit of the wife, it affords sufficient ground for refusing him relief in such a suit.”(1)

What right accrues if the wife is living separately due to a different place of work?

Development of social norms has witnessed that more women are coming out to take up jobs and move ahead on the path of economic independence. This is not just an ideal, but a right of the woman, or every other individual for that matter. In this regard, where the wife is posted at a different place than that of the husband, and consequently leaving the husband to live separately, “the question arises whether taking up a job by the wife at a place other than the husband’s amounts to desertion and her withdrawal from the society of the husband without reasonable cause, and can the husband sue her for the restitution of conjugal rights.” What will be the final decision when conjugal rights have come into open conflict with the women’s right to equality in the opportunity of employment?

• When economic considerations require the wife to take up the job

Earlier, even economic consideration did not allow the wife to virtually withdraw from the society of the husband unless it was done by mutual consent of both the parties. However, this seems to be unreasonable keeping in mind the present society and modern living conditions. Later on, a liberal approach was taken by the Allahabad High Court in the case of Shanti Nigam v. R. C. Nigam(2). The relevant part of the judgment held that “women can no longer be confined to the house. In the view of altered social conditions, both husband and wife may think it necessary to work and contribute equally to the family chest…….. It is one thing for a wife to say that she will not go to her husband and will not cohabit with him nor will she allow him to come to her. It is different if she says that it is necessary for the upkeep of the family that she should also work and she would go to her husband whenever it is possible for her to do so, and the husband could also come to her at his own convenience…… In such a situation it cannot be said that she has withdrawn herself from the society of her husband.”

The court emphasizes the modern outlook of marital relations and also the economic aspect of living, and opines that such separation will be a reasonable cause for the wife. There is stress on the economic necessity of the wife to take up a job.

• When there is no economic necessity for the wife to take a job and live separately.

In the case of Smt. Kailash Wati v. Ayodhia Prakash (3), this question was broken down into three parts and dealt with each part separately.

1. When the wife is already working before and at the time of marriage
2. When the husband encourages/allows his wife to take up employment after marriage
3. When the wife accepts employment away from the matrimonial home, against the wishes of the husband.

In the first instance, it was held that marrying an already working wife does not by implication mean that the husband gives up his claim to share a matrimonial house with his wife. Similarly, even in the second instance, the husband does not abandon his right to live with his wife. In these cases, the court, thus, has to look deeper into the facts and circumstances of the case to determine and enforce the rights of the parties. However, in the third instance, the court held that it was an “obvious case of unilateral and unreasonable withdrawal from the society of the husband and thus a patent violation of the mutual obligation of the husband and wife to live together.”

Is the right to determine the place of matrimonial home only available to the husband?

The above premise that states that the wife taking up employment away from the husband, without his consent is not a reasonable cause to withdraw, implies that it is the husband who has the right to determine the place of the matrimonial home in which the wife is to fulfill her conjugal duties and other marital obligation. The court was of the opinion that since the (Hindu) law binds the husband to maintain his wife and minor children, irrespective of the fact whether or not he possesses any property, it co-relates to the right of the husband to determine the matrimonial home. Since no such duty is imposed on the wife, even if she is financially independent, the corresponding right is not available to her. Thus, the husband has the right to claim his wife to live with him in the matrimonial home of his choice. In the above case, the wife’s appeal was dismissed as she had retransferred to her natal home (she was working even before marriage) and did not give a reason for doing so, which was viewed as deliberately leaving the matrimonial home.

This view faces criticism in the face of modern developing society, and the right of the wife, or any woman for that matter, to work, not necessarily to help the economic condition at home. It is also a deterrent to marriage, especially for women who are already working, as it shows that women are to be treated as a mere appendage. The question still hangs whether the capabilities of a wife are to be merely used as an instrument when the need arises.

Is There Any Effect Of Prenuptial Agreement?

A prenuptial agreement is entered into by a couple about to tie the knot — it is a signed, registered and notarized document that usually outlines the distribution of assets, liabilities, and issues relating to the custody of children if the marriage falls apart in the future. The content of a prenuptial agreement may vary. However, prenuptial agreements are strictly financial in nature. They are contracted, if both the parties to agree to do so, for the purpose of protection of financial assets of both spouse, and determination of alimony and maintenance. In India, prenuptial agreements are neither legal nor valid under the marriage laws because they do not consider marriage as a contract. A marriage is treated as a religious bond between husband and wife and prenuptial agreements don’t find social acceptance. However, they may be used for the purpose of evidence and reference. If entered into, they are taken as ordinary agreements. These are governed by the Indian Contract Act and have as much sanctity as any other contract, oral or written.

Personal issues do not form a part of prenuptial agreements. This brings about the issue of prenuptial agreements that deal with conjugal rights and residential status of both the spouses. By the laid down premise, such agreements cannot be enforced in a court of law. In the case of Hamidunnessa Biwi v. Zohiruddin Sheikh (4), in a suit by husband for restitution of conjugal rights, the wife relied on a prenuptial agreement, executed by the guardians of the husband, then a minor, and also by the husband, stating that the husband would always live at his mother-in-law’s house and the wife would never be required to leave her parental home or reside somewhere else; the court refused to uphold the agreement. To put this into perspective, we can clarify that this was in consonance with Muslim law that allows for marriage contracts ‘nikah-nama’, wherein guardians can enter into such valid contracts on behalf of a spouse who is minor at the time of marriage. However, such clauses will not hold, for being in violation of public policy. It is also in violation of the mutual rights and obligation that arise upon marriage between the spouses.

Similarly, a case under Hindu law, Krishan Iyer v Ballamal(5) dealt with the question, whether an agreement between husband and wife to live apart from each other is valid or not said: Even apart from the Hindu Law the agreement, we think, must be regarded as opposed to public policy and therefore not enforceable. It may well be deemed to be forbidden by the Hindu Law.

What Is The Case Procedure When a decree of restitution of conjugal rights Is Filed?

• If you are the aggrieved party, in this case, the husband, file a petition in the district court. The format of such petition is available on the internet. This can be transferred by application to the High Court or Supreme Court as well.
• Upon such filing, a copy of the petition should be sent to the respondent- wife along with the date of hearing from the district court. The date is generally after 3 months of filing the petition.
• Both parties are to be present at the date of hearing. If both parties are not present, the court gives another date.
• The next step is that of counseling/mediation sent by the court-It is done by the family court, as provided for in the Family Courts Act. This takes approximately 4 months.

What happens in Counseling?

Once the parties are sent to counseling, they need to appear before a counselor. This may be someone who has volunteered or has been appointed by the court, generally a female junior advocate. Counseling takes place on 2-3 dates with a gap of 2-3 weeks between two dates. Here, both the parties are given a chance to present their versions of the facts, and the counselor tries to come to an understanding. In the end, the counselor offers and advice. This may be amicably sorting out the difference and go back to the husband, or to go for a divorce by mutual consent. If the parties agree, it will imply that the purpose of counseling/ mediation has succeeded, and the suit can be dropped. However, if the parties refuse to proceed according to the suggestions of the counselor, the counselor will forward the application back to court on grounds that mediation has failed.

• Once the application is back in court, the suit will continue, and the respondent-wife is required to give her ‘counter’ to the husband’s application. Oral arguments will proceed to dispose of the interim petitions first and pass the interim order.
• Once this is done with, the proceedings for restitution of conjugal rights begin. The husband has to file a Chief Examination Affidavit for producing evidence that the wife has left him, which will result in cross-examination.
• Final arguments take place next, where both the parties represent their version of facts, cite any relevant judgments, and ultimately pray for relief from the Judge.

• Based on the counseling, statements made and the conduct of the parties, the judge accordingly grants the decree.

Non – Resumption Of Cohabitation As A Ground For Divorce

The idea behind restitution of conjugal rights is to avail a milder path towards divorce, or avoid it altogether, which is the final matrimonial remedy. However, restitution of conjugal rights is a paper decree and is not binding on either spouse. Therefore, to ensure execution, there is an attachment of the Respondent’s property to it, as per Order21 Rule 32 of the Code of Civil Procedure. The rule says that where the party against whom a decree for restitution of conjugal rights, has been passed, and has had an opportunity of obeying the decree and has willfully failed to obey it the decree may be enforced by attachment of his property. Upon passing of such decree, the law provides for a minimum of one year beyond which other remedies lie. The husband has to wait for a period of one year to enforce the decree. Thus, various personal laws also hold that where there is no restitution of conjugal rights or resumption of cohabitation between the parties for a period of one year or above after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties; it can become a ground for divorce. Here it is necessary to note, that this ground is available to both parties.

Can Husband Seek Divorce For Denial Of Conjugal Rights Without Filing For Restitution of Conjugal Rights?

In light of the above question, the Bombay High Court has held that denying intercourse to the spouse for a long period of time will amount to cruelty, and will be ground for divorce. Similarly, the Supreme Court has also said that if a spouse does not allow the partner to have intercourse for a long time, without sufficient reason, it amounts to mental cruelty, upholding a verdict of the Madras High Court to grant a divorce to a man. Thus, a husband, wherein is denied conjugal rights by the wife, can file for divorce, without the remedy of restitution of rights. The procedure of the case will then proceed on the lines of a divorce proceeding.

How Can Judicial Separation Be Used In Such Cases?

What is judicial separation?

Judicial separation is an instrument devised under the law to afford some time for introspection to both the parties to a troubled marriage. Law allows an opportunity to both the husband and the wife to think about the continuance of their relationship while at the same time directing them to live separate, thus allowing them the much-needed space and independence to choose their path. Judicial separation is a sort of a last resort before the actual legal breakup of marriage i.e. divorce.

When can you file for judicial separation?

It can be filed either by the husband or wife and can be sought on all those ground on which decree for dissolution of marriage, i.e. divorce can be sought. Thus, where there is a chance of reconciliation between the spouses, either of them can opt for the remedy of judicial separation before filing for divorce. The nature of this remedy has aptly led to it being termed as a ‘trial divorce’.

Can judicial separation be filed on the grounds of non-compliance with the decree of restitution of conjugal rights?

The grounds for filing for judicial separation are similar to the grounds for divorce, not same. As per all the personal laws, they, however, do not include non-compliance with the decree of restitution of conjugal rights or non-resumption of cohabitation after such decree has been passed as a ground. However, a husband can file for it under the ground of desertion, if the time lapse is satisfied, and there is a reason to believe that the spouses may reconcile.

Right To Maintenance Of Wife?

The right to maintenance is conferred upon the spouses in order to see that if there is a spouse who is not independent financially than the other spouse should help him/her in order to make the living of the other person possible and independent. It is common to see maintenance being discussed in the context of the wife with the aim that, considering the gender balance in the society, the wife should not be left destitute during the subsistence of marriage or upon divorce or separation.

1. Section 18 of the Maintenance as per Hindu Adoption and Maintenance Act, lays down the grounds when maintenance can be granted to the wife while the marriage is subsisting. Here it also adds where the wife will not be entitled to maintenance, as when the wife is unchaste to be one of the factors. Similarly, no maintenance will be given to the wife who deserts husband without reasonable cause. Thus, where the wife fails to prove reasonable cause for withdrawing from the society of the husband or deserting the husband, a ground for maintenance will not lie later on. (6)

Also, if there is non-compliance of the decree by the wife, it may be presumed that the wife has a reasonable cause to live separately from the husband, which may also hamper her claim for maintenance. The wife’s right to maintenance is also hampered where the relief of restitution of conjugal rights is successfully granted to the husband. (7)

Prenuptial Agreement On Residential Status Of Spouses V. Right To Maintenance

Tekait Mon Mohini Jemadai v Basant Kumar Singh (8) is considered one of the important judgments dealing with the aspects of prenuptial agreement among Hindus. In this case, a suit for the restitution of conjugal rights was filed by Hindu husband. The wife relied on an agreement executed at the time of marriage by their guardians, according to which, the husband would always live with his wife at his mother-in-law’s house and would not be entitled to take her away. It was held that, under Hindu law, marriage besides being a contract is a sacrament. It is more religious than secular in character and it is the bounden duty of the wife to live with her husband wherever the latter may choose to reside and to submit obediently to the authority of the husband. It was also held that his agreement relied on by the wife, if permitted, would defeat a rule of Hindu law and is opposed to public policy. Placing reliance on this principle, the court in the case of Sri Bataha Barik v Musammat Padma (9), which had similar facts, wherein the husband left the place of his father-law after living there for some time. The court set aside the order of the lower court directing the husband to succumb to such an agreement, and pay maintenance to wife, and ordered that petitioner (husband) is liable to pay only for the maintenance of his child.

 

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1) Moonshee Buzloor Ruheem and Jodonath Bose vs. Shumsoonnissa Begum (16.02.1867 – PRIVY COUNCIL): MANU/PR/0018/1867

2)1971 A. L. J. 67; AIR 1971 All. 567

3) LXXIX P. L. R. 216. (1977)

4) (1890) 17 Cal 670

5) (1911) 34 Mad 398.

6)http://www.vakilno1.com/legal-news/maintenance-wife-deserts-husband-without-just-cause.html

Anil v. Sunita,2016 SCC OnLine MP 6368, decided on 11.11. 2016

http://blog.scconline.com/post/2016/12/14/wife-is-not-entitled-to-maintenance-if-living-separately-without-any-sufficient-reason/

7) Satish vs. Smt.Yoglata & Anr S.B. Criminal Misc. Petition No. 1347/2008

8) (1901) 23 Cal 751

9) AIR 1969 Ori 112