The Limitations of Restitution of Conjugal Rights in India


There are conjugal rights in Indian law that protect marriages and relationships. A spouse or husband that leaves without justification must return to cohabit. The regulation is challenged as constitutional by two perspectives.conjugal rights are often believed to bind marriages together as social institutions. Conversely, women argue that conjugal rights violate their human rights, are unconstitutional, and are intrusive.

An overview of the law:

The restitution of conjugal rights has evolved over the years thanks to landmark cases in this field. Dharmashastra or Muslim laws do not protect the sanctity of marriages as much as feudal English laws do. Moonshee Buzloor Ruheem v. Shumsoonissa Begum4 embodied this concept in Indian personal law when a deserting spouse must live with an aggrieved spouse.

The Provision as It Applies to Different Religions

1. Laws of the Hindu religion

Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of conjugal rights.8 Under Section 9 of the Hindu Marriage Act, a spouse has the opportunity to go to court to enforce his/her rights under the right to the consortium. The Hindu Marriage Act, 1955 provides an aggrieved party with the ability to seek maintenance under Section 25.

2. Laws of the Muslim religion

According to Tayabji, Muslim law enshrines restitution of conjugal rights as follows:

“In the event that one spouse withdraws without good cause, the other spouse can reclaim the conjugal rights without good cause.”

The following reasons may prevent a court from restitution conjugal rights to a couple:

  • In case of cruelty by husband and inlaws
  • Unfulfilled marital obligations by the husband
  • Dower not paid on time by husband

3. Laws of the Christian religion

Christian husbands and wives can request restitution of conjugal rights. The Court cannot issue the decree due to the following reasons:

  • When a spouse is cruel.
  • Couples with insane spouses.
  • If either spouse remarries.

The conditions for a grant of restitution of conjugal rights

Restitution of marital rights requires the petitioner to demonstrate the following:

  • In response to the petition, the respondent has withdrawn.
  • Without a reasonable explanation, the respondent withdrew.
  • The petitioner’s assertions are true, according to the court.
  • Application denials have no legal basis.
  • A court may then order the respondent to live with the petitioner.

Limitations and Scope

Is the restitution of conjugal rights an infringement on the right to privacy?

Several cases have raised the question of whether a person’s autonomy over their own body is covered by their right to privacy. Courts have a divided opinion. A court discussed this question in the Gobind v. case in 1975, the Supreme Court held that though the right to privacy is extended to intimate personal intimacies of home and marriage, it is a private space of the individual and should not be interfered with by law.

In T. Sareetha v. T. Venkatasubbaiah12, Section 9 violated privacy rights. Harvinder Kaur v. Harmander Singh Chaudhary, however, dealt differently with feudal provisions that protected marital bonds at the expense of fundamental rights. The Madhya Pradesh Marriage Act, Section 9, upheld even though it imposes cohabitation without requiring sexual relations. The judgment does not allow a court to enforce privacy rights within private spaces.

In declaring Section 9 not to violate the law because this country lacks legislation prohibiting marital rape, the judge erred. Even though the provision does not require sexual relations, there is a way to circumvent it by getting a restitution of conjugal rights decree to cover marital rape. Puttaswamy v. Union of India13 upheld one’s right to privacy over their bodies. A fundamental right and liberties of every individual is the right to self-determination.

Is restitution conjugal rights in violation of equality?

As a result of Ojaswa Pathak v. Union of India, reproductive autonomy and health were raised. There was a constitutional challenge to sections 9 and 22 of the Hindu Marriage Act, 1954, and order 21 of the Code of Civil Procedure, 1908.

Feudal laws like English law that provide restitution of conjugal rights violate articles 14 and 15(1) by excluding women, according to Shakila Banu v. Gulam Mustafa15.

As a result of laws and remedies available to them, forced cohabitation often results in unwanted pregnancies, sexual exploitation, or physical abuse. This violates the rights to equality and self-awareness.

Final thoughts:

As a result of developing a new method for restitution of conjugal rights, the court may be entitled to set up a reconciliation committee. Restitution should be decided by the courts based on the opinions of the committees but shouldn’t be imposed on the spouses by the courts. A marriage is a commitment to share autonomy and freedom, not ceremonies.

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