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Introduction

Hindu marriage is defined as a spiritual sacrament wherein two-person of different sex consented to live together for an indefinite period for the physical, social and religious wants of dharma, and for the procreation of children.

After the enactment of the Hindu Marriage Act, 1955 the concept of marriage started changing, and some kind of criteria for the same is followed to make the marriage valid. Since the Hindu Marriage Act, 1955 contains statutes for marriage, it also has the provision for matrimonial relief.

Restitution of conjugal rights is one of such reliefs provided and defined under the Hindu marriage act, 1955.

What is the meaning of Restitution of Conjugal Rights?

Complaint

Restitution of conjugal rights basically means the restoration of marital rights and obligations of the parties to the marriage. If any of the parties to the marriage has withdrawn himself or herself from the society of the other without giving any reasonable reason for the same, then the other party can file a plea in the District Court for restitution of conjugal rights covered under Section 9 of the Hindu Marriage Act, 1955.

Shanti Nigam v Ramesh Chandra Nigam, 1971 & Kailashwati v Ayodhya Prakash, 1977

In both cases, it was held by the court that if the party to the marriage is doing his/her job to some other place, even after the wishes of the other partner then it will not be considered as the ground for restitution of conjugal right. The only condition that needs to be proved by the respondent is that he/she has performed his part of the obligation as done in the marriage.

4 essentials required to pass any decree for restitution of conjugal rights.

  1. The party to the marriage has withdrawn himself from the society of the agrrieved party, without giving any reasonable reason for the same, with the intention of permanently terminating the marriage. But if either of the party to the marriage on regular basis performs their social and conjugal obligation, then court will dismiss the plea of RCR.
  2. The party who has withdrawn from the society has not given any reasonable reason for his/her removal from the petitioner society, but if the same has been done and it is proved by the respondent that the petitioner has performed cruelty, or the other person has performed adultary or he/she is living away because of his/her job then the plea for Restitution of conjugal rights would be dismissed.
  3. If the court finds that the ground mentioned above are true in nature then the they will pass the decree of RCR.
  4. There should be no legal provison in the hands of the respondent which enables the him to live seprately even though the grounds- 1 and 2 are satisfy the petitioner.
restitution of conjugal rights

Note– If any of the parties to the marriage files a plea for Restitution of Conjugal Rights (RCR), and the decision comes in favour of the petitioner and even though the respondent does not come back to the life of the petitioner for a continuous period of one year from the date of the decree passed, then the petitioner can file a plea for constructive desertion and ask for a divorce from the court on the same ground.

The court can attach the property of the respondent in the Restitution of Conjugal Rights(RCR) plea if the party does not follow the order of the court so that coercion can be created which enables the person to go back to the petitioner, but the court cannot issue an arrest warrant and arrest the person on the ground that he is disobeying the order of the court.

Tirath Kaur vs Kirpal Singh- In this case, the Supreme Court held that living away from the husband merely on the ground that you are working for a job somewhere else is not a reasonable excuse under Restitution of Conjugal rights.

Shanti vs Ramesh– In this case, the court reserved the order of the above-mentioned case, the court held that it is a violation of article-14 of the constitution, both the sex has the right to work.

After these judgments, Section 9 of the Hindu Marriage Act was constitutionally challenged before the court of law.

In the case of Sareetha v/s T. Vekata Subbach, it was held by the court that section-9 is constitutionally invalid because it is a violation of the right of privacy covered under article-19 of the constitution and a violation of human dignity covered under article- 21 of the constitution.

But in Harvinder Kaur vs Harmander Singh and Saraj Rani vs Sudarshan Kuman Chad, the court held that the objective of a section-9 of the Hindu Marriage Act is to protect the marriage and not to break the marriage, so it is not a violation of article-14 and 21 of the constitution the court tries to save the marriage the as much as they can, but the court feels that if there is no more reason as to why they should retain the marriage and even though they are giving the decree of RCR then it would be regarded as the violation of article-14 and 21of the constitution.

Who has the Right to set up a matrimonial home?

restitution of conjugal rights

According to the court, the right to decide where their matrimonial home will lie upon the one who has a high source of income from his/her job. For e.g., if A and B are parties to the marriage and a is earning 30 thousand per month and B is earning 60 thousand per month, then B has the right to decide where their matrimonial home will be.

In the case of Swaraj Garg vs K.M Garh, 1998 both the parties in the marriage were contributing equally from their income, so the problem arises which will have the right to decide where their matrimonial house will be. the court held that if neither party is terminated from their job and neither they are able to mutually decide where their matrimonial house will be, then in that situation the marriage will be considered as the breakdown of the marriage.

Conclusion

family law

In India, the motive behind the concept of matrimonial relief is to save or restore the marriage, instead of breaking of marriage because it makes a negative impact on the lives of the parties as well as on their children if any. The court gives enough time to the parties in the marriage to understand the consequences of the divorce and also to make them release their importance but if the court finds that there is no scope of saving of the marriage then in the last condition the court grants divorce to the party.

Restitution of conjugal rights as a matrimonial relief is also provided to restore the marriage, but if the party in the marriage does not want to live with the petitioner then the court on the last condition give divorce to the parties after the completion of 1 year from the decree passed for restitution of conjugal rights.

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Hi everyone, my name is Harpreet Randhawa, a law student who believes in sharing my opinions and spreading awareness on our law system. I hope you find my writing crisp and relevant.

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