Restitution of Conjugal Rights v. Individual Autonomy: Looking Through the Constitutional Lens in India

Paras Diwan, Law of Marriage and Divorce, 5th ed. (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2008).

The Laws of Manu, trans. George Bühler (Oxford: Clarendon Press, 1886), https://www.onelittleangel.com/download/The-Law-of-Manu.pdf.

The Narada Smriti is an old Smriti consisting of 1,028 verses. There are two commentaries. One is attributed to Asahaya (AD 650–750), while the other is attributed to Bhavasvamin (AD 700–1000). The Narada Smriti treatise resembles the Manusmriti. The text covers various subjects, including rnadana (debt recovery), upanidhi (deposits and lending), dattapradanika (gifts and resumption thereof), abhyupetya-asusrusa (breach of a service contract), asvamivikraya (sale without ownership), samayasya-anapa-karma (conventional violation of guilds), simabandha (boundary settlement), dayabhaga (partition and inheritance), stripumsayoga (marital relations), crimes and punishments, and vyavahara (social conduct).

The Parasara Smriti has 592 verses and originated between the 1st and 5th centuries CE. The text has numerous verses that are comparable to those found in the Manusmriti. It provides instructions on various aspects of daily life, such as responsibilities, family obligations, agriculture, penalties, rewards, and expiating sins.

Ibid., 65. See also the Rig Veda IX, 85, and Manusmriti VIII, 227–28.

“A Christian View of Marriage,” Christianity.org, accessed May 22, 2024, https://www.christianity.org.uk/article/a-christian-view-of-marriage.

Aqil Ahmad, Mohammadan Law, 26th ed. (Allahabad: Central Law Publications, 2016).

J. Duncan M. Derrett, “Jewish Law in Southern Asia,” International and Comparative Law Quarterly 13, no. 1 (Jan. 1964): 288–301, https://doi.org/10.1093/iclqaj/13.1.288.

Flavia Agnes, Family Law, vol. 1 (Oxford: Oxford University Press, 2011).

Raj Kumari Agarwala, “Restitution of Conjugal Rights Under Hindu Law: A Plea for the Abolition of the Remedy,” Journal of the Indian Law Institute 12, no. 2 (1970): 257–68.

Ibid.

Moonshee Buzloor Ruheem v. Shusoonissa Begum, (1867) 1 MIA 551.

Flavia Agnes, Family Law, vol. 1 (n 9).

The word talaq originated from the Arabic word ṭalakas, which means to repudiate. Per Islamic law, talaq is the man's unilateral right to divorce his wife.

Sudhir Chandra, Enslaved Daughters: Colonialism, Law and Women's Rights, 2nd ed. (Oxford: Oxford University Press, 2008), 73–76. https://doi.org/10.1093/acprof:oso/9780195695731.003.0003.

Simon Petch, “Law, Equity, and Conscience in Victorian England,” Victorian Literature and Culture 25, no. 1 (1997): 123–39, https://doi.org/10.1017/s1060150300004666.

Abdul Kadir v. Salima, (1886) 8 All 149.

Nazrul Islam v. Mustt. Sajeda Begum, AIR (2006) Gau. 159.

Sonal Aashish Madhapariya v. Aashish Harjibhai Madhapariya, AIR 2020 Guj. 146. Before granting the RCR decree, the court had to be satisfied beyond a reasonable doubt that the respondent withdrew from the petitioner's society without a reasonable excuse, and the court was free to decide the case accordingly to grant or not grant the said decree. In this case, the husband claimed abandonment on the one hand and stated that the wife asked him to leave his house and reside with her parents. But no clarity was found in the husband's statement as to how, when, and under what circumstances the wife withdrew. Thus, the decree couldn't be granted in favor of the husband.

Dadaji Bhikaji v. Rukhmabai, (1885) ILR 9 Bom 529.

Sudhir Chandra, Enslaved Daughters, 213 (n 15).

The Constitution of India places fundamental rights under Part III (arts. 12–35).

T. Sareetha v. Venkata Subbaiah, AIR 1983 AP356.

Ojswa Pathak v. the Union of India, MANU/SCOR/18703/2021.

Article 21 of the Indian Constitution: No person shall be deprived of his life or personal liberty except according to a procedure established by law.

Article 14 of the Indian Constitution: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Article 13 of the Indian Constitution: “(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,—

(a) ‘Law’ includes any ordinance, order, bylaw, rule, regulation, notification, custom, or usage having in the territory of India the force of law.

(b) ‘Laws in force’ includes laws passed or made by a legislature or other competent authority in the territory of India before the commencement of this constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.”

State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84, (1951) 53 BOMLR 779, ILR 1951 Bom. 775.

Gautam Bhatia, “The Sabarimala Judgment – III: Justice Chandrachud and Radical Equality,” Constitutional Law and Philosophy (Sep. 29, 2018), https://indconlawphil.wordpress.com/2018/09/29/the-sabarimala-judgment-iii-justice-chandrachud-and-radical-equality/.

Indian Young Lawyers Association v. The State Of Kerala (“The Sabarimala Judgment”), 2018 SCC Online SC 1690, p. 232.

Justice P.B. Gajendragadkar, Chairman, Law Commission of India, “Law Commission of India Report no. 59,” New Delhi: Government of India, Union Minister of Law and Justice, Ministry of Law and Justice, Mar. 6, 1974, https://lawcommissionofindia.nic.in/report_sixth/.

Law Commission of India, “Irretrievable Breakdown of Marriage – Another Ground for Divorce,” Report no. 217, New Delhi: Government of India, Ministry of Law and Justice, Dept. of Legal Affairs, Mar. 30, 2009, https://indiankanoon.org/doc/117804397/.

Linda v. Belisario, (1795) 1 Hag. Con. 216(21) per Sir William Scott, at pp. 23, 30.

Section 9 of the Hindu Marriage Act 1955 states, “When either the Husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for Restitution of conjugal rights and the court, on being satisfied with the truth of the statements made in such petition and that there is no legal ground why the application should not be granted may decree Restitution of conjugal rights accordingly.”

The Indian Divorce Act 1869, §§ 32, 33. An order of restitution of conjugal rights may also be requested by a Christian husband and wife. For the following grounds, the court would be unable to issue the decree if (1) There is cruelty to the wife or husband; (2) Either one or both of the spouses exhibit symptoms of mental illness; or (3) In the event that either of the spouses enters into a subsequent marriage.

Section 36 of the Parsi Marriage and Divorce Act 1936 provides the following: “Suite for restitution of conjugal rights.—Where a husband shall have deserted or without lawful cause ceased to cohabit with his wife, or where a wife shall have deserted or without lawful cause ceased to cohabit with her husband, the party so deserted or with whom cohabitation shall have so ceased may sue for the restitution of his or her conjugal rights and the Court, if satisfied of the truth of the allegations contained in the plaint, and that there is no just ground why relief should not be granted, may proceed to decree such restitution of conjugal rights accordingly.”

Section 22 of the Special Marriage Act 1954: “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. [Explanation.—Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]”

Dr. Rakesh Kumar Singh, Textbook on Muslim Law, 10th ed. (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2011).

“Restitution of Conjugal Right: A Comparative Study Among Indian Personal Laws,” Indian Bar Association (n.d.), accessed May 22, 2024, https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/.

Pallavi Bhardwaj v. Pratap Chauhan, (2011) 15 SCC 531.

Tahir Mahmood, Family Law in India (Lucknow, India: Eastern Book Company, 2023).

Deepnainee Kaushal, “The Restitution of Conjugal Rights: An Analysis from Privacy Conundrum,” International Journal of Law Management and Humanities 4, no. 3 (2021): 5302–12, https://doij.org/10.10000/IJLMH.111135.

Mrs. Renu Chakravarty's Observation on the Deletion of Section 9 from the Hindu Marriage Bill (as it was then), Lok Sabha Debates, pt. 2, session 9th, 1955, vol. 4, 7625.

Russell v. Russell, [1897] A.C. 395.

Art. 21 of the Constitution of India.

Dr. Poonam Pradhan Saxena, Family Law Lectures I, 5th ed. (New Delhi: LexisNexis India Ltd., 2021).

Dadaji Bhikaji v. Rukhmabai, 1885 (1885) ILR 9BOM529, para. 2.

Shakila Banu v. Gulam Mustafa, AIR 1971 Bom. 166, ILR 1971 Bom.

Maha Ali, “Restitution of Conjugal Rights under Islam,” RSIL Law Review II, no. I (2018).

Gobind v. State of Madhya Pradesh, AIR 1975 SC 1378, 1975 2 SCC 148, 1975 3 SCR 946.

Nimeshbhai Bharatbhai Desai v. State of Gujarat, R/CR.MA/14508/2021.

Saba, “Marital Rape: A Husband Cannot Be Permitted to Treat His Wife like a Chattel and Violate Her Dignity,” SCC Times, Case Briefs, Apr. 18, 2018, https://www.scconline.com/blog/post/2018/04/18/marital-rape-a-husband-cannot-be-permitted-to-treat-his-wife-like-a-chattel-and-violate-her-dignity/.

T. Sareetha, AIR 1983 SC 356.

Harvinder Kaur v. Harmander Singh Chaudhary, AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187.

Lord Goddard specified in Thomas v. Thomas, [1948] 2 K.B. 294, 297, “Cohabitation consists of the husband acting as a husband towards the wife and the wife acting as a wife towards the husband, with the wife performing housewifely duties for the husband and the husband cherishing and supporting his wife as a husband should.” See also Weatherley v. Wentherley, [1946] 2 All E. R. I (II) (6); Evans v. Evans [1948] I K.B. 175 (7).

Justice K.S. Puttaswamy Retd. and Anr. v. Union of India, (2017) 10 SCC 1: (2017) SC 420.

Ojaswa Pathak v. Union of India (n 24).

Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co.,1954 AIR 119, 1954 SCR 674.

“Writ Petition (Ojaswa Pathak) Summary,” Supreme Court Observer (July 8, 2021), https://www.scobserver.in/reports/union-india-restitution-conjugal-rights-writ-petition-ojaswa-pathak-summary/.

Justice K.S. Puttaswamy Retd. and Anr. v. Union of India, (2017) 10 SCC 1, See paras 335, 371.

Ruchi Makhija, “Should Restitution of Conjugal Rights Be Removed?,” South Asian Law Review Journal, vol. 9 (2023): 76–85, https://doi.org/10.55662/salrj.2023.902.

Dinshaw Fardunji Mulla, Hindu Law, 24th ed. (Gurgaon, India: LexisNexis, 2021).

Law Reform Commission, “Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters, Ireland” (1983), 5, https://www.lawreform.ie/_fileupload/reports/rjactitation.htm.

Karl Hayes, ‘The Matrimonial Jurisdiction of the High Court,’ Irish Jurist 8, no. 1 (Summer 1973): 55–77, http://www.jstor.org/stable/44026605.

The Law Commission, “Proposal for the Abolition of the Matrimonial Remedy of Restitution of Conjugal Rights,” London: Her Majesty's Stationery Office, July 24, 1969, https://www.gov.uk/government/publications/proposal-for-the-abolition-of-the-matrimonial-remedy-of-restitution-of-conjugal-rights.

Law Reform (Husband and Wife) (Scotland) Act 1984, https://www.legislation.gov.uk/ukpga/1984/15/section/2.

Family Law Act, 1988, https://www.irishstatutebook.ie/eli/1988/act/31/enacted/en/html.

This was part of the rules and procedures governing legal proceedings in the Cape Colony during the colonial period to regulate the functioning of the courts and ensure fair and orderly proceedings including various aspects of litigation, such as filing procedures, service of documents, court appearances, evidence, and judgments.

Daniels v. Daniels, 1 1958 (1) S.A. 513 (A.D.); Van Wyk v. Van Wyk and Another, 1962 (3) S.A. 976 (D). The latter case was first discussed in South Africa in 1962. It concerned the court's discretion to disregard the plaintiff's adultery while deciding when to grant her application for an order restoring conjugal rights. Judge Fannin said that the court's discretion to overlook the adultery of a plaintiff suing for an order for RCR can only be exercised in favor of the plaintiff where the defendant does not insist on raising such misconduct as a defense to the plaintiff's claim.

Van Vuuren v. Van Vuuren, 1959 (3) S.A. 765 (A.D.).

Casper Hendrik Van Zyl, The Theory of the Judicial Practice of the Colony of the Cape of Good Hope, and of South Africa Generally, with Suitable and Copious Practical Forms Subjoined to and Illustrating the Practice of the Several Subjects Treated of (London: W. Clowes & Sons, 1902), 482–91.

J.M. Didcott, “Plaintiff's Adultery as a Defence to an Action for Restitution of Conjugal Rights,” South African Law Journal 82, no. 2 (May 1965): 164–68.

Section 14 of The Divorce Act, 1979 (Act no. 70 of 1979): “It shall not be competent for a court to issue an order for the restitution of conjugal rights or for judicial separation.”

As per section 114(2), the court can “make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights.”

Family Law Act 1975, https://www.legislation.gov.au/Details/C2020C00374. Under Part I of the Act, Section 8(2) of the Proceedings for a decree of restitution of conjugal rights, of jactitation of marriage or of judicial separation shall not be instituted or continued after the commencement of this Act.

NSW Law Reform Commission, “Family Violence—A National Legal Response,” ALRC Report 114, NSWLRC Report 128, Australia: Ligare Pty. Ltd. (Oct. 2010), https://www.alrc.gov.au/wp-content/uploads/2019/08/ALRC114_WholeReport.pdf.

Family Law Amendment (Family Violence and Other Measures) Act 2018, https://www.legislation.gov.au/C2018A00097/latest/text.

“Divorce,” Family Relationships Online, Australian Government, Jan. 28, 2022, https://www.familyrelationships.gov.au/separation/divorce.

Mattison Mines, “Conceptualizing the Person: Hierarchical Society and Individual Autonomy in India,” American Anthropologist 90, no. 3 (Sep. 1988): 568–79, https://doi.org/10.1525/aa.1988.90.3.02a00030.

Asaf A.A. Fyzee, Outlines of Muhammadan Law (Oxford: Oxford University Press, 2008), 116.

Dinsha Fardunji Mulla, Mulla Principles of Mahomedan Law, 23rd ed. (Gurgaon, India: LexisNexis, 2021).

Justice Ranganath Misra and Dr. Vijeendar Kumar, Mayne's Treatise on Hindu Law & Usage, 16th ed. (New Delhi: Bharat Law House, 2008).

Hindu Marriage Act 1955, § 23(2).

Dr. Babasaheb Ambedkar, “Writings and Speeches,” 17 vols., Ministry of Social Justice & Empowerment, Govt. of India, accessed July 5, 2024, https://archive.org/details/Dr.BabasahebAmbedkarWritingsAndSpeechespdfsAllVolumes/Volume_14_01/page/n671/mode/1up?q=restitution+.

Ashish Tripathi, “Centre Defends Restitution of Conjugal Rights in SC, Says It's a ‘Practical Matrimonial Remedy,’” Deccan Herald, Sep. 6, 2022, https://www.deccanherald.com/national/centre-defends-restitution-of-conjugal-rights-in-sc-says-its-a-practical-matrimonial-remedy-1142796.html.

Ibid.

Ojaswa Pathak v. Union of India (n 24).

Saroj Rani v. Sudharshan Kumar, 1984 AIR SC1562, 1985 SCR (1) 303.

Amrita Atul Deshmukh, ‘Constitutional Validity and Ethicalness of Restitution of Conjugal Rights in India,’ Acclaims, vol. 4 (Dec. 2018).

Ibid.

Balwinder Singh, “Wife's Right to Employment Vis-a-Vis Husband's Conjugal Rights Under Hindu Law: A Critique,” NUALS Law Journal, vol. 8 (2014): 87–100.

Forster v. Forster (1790) I. Hag. Con. 144 (3)

Swaraj Garg v. R. M. Garg AIR 1978 Del. 296.

Balwinder Singh, “Wife's Right to Employment Vis-a Vis Husband's Conjugal Rights Under Hindu Law: A Critique,” NUALS Law Journal 8 (2014): pp. 87–100

Sushila Bai v. Prem Narayan, AIR 1986 MP 225.

Sh. Amit Chopra v. Smt Poojaa, AIR 2012 P&H 112011, SCC OnLine P&H 6859, Shri.Satish Saha v. Smti. Madhabi Sahaa, July 10, 2019, High Court of Meghalaya FA. No. 1 of 2016.

Rule 32, Order 21, Code of Civil Procedure (1908), Decree for specific performance for restitution of conjugal rights or for an injunction, (1)Where the party against whom a decree for specific performance of a contract, or for restitution of conjugal rights, or for an injunction has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of decree for restitution of conjugal rights by attachment of his property or in the case of decree for specific performance of contract or for an injunction by his detention in the Civil prison or by attachment of his property or by both.

Shri Satish Saha v. Smt. Madhabi Sahaa (Aug. 1, 2019).

Pushpa Kumari v. Parichhit Pandey, 2005 (1) BLJR 486, 2005 (1) JCR 134 Jhr.

Ibid., para. 12.

Ibid.

Joseph Shine v. Union of India, (2019) 3 SCC 39.

Indian Penal Code (1860), § 497: Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offense of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.

Para. 60.

Para. 36.

Kharak Singh v. State of UP, 1963 AIR 1295, 1964 SCR (1) 332.

Govind v. State of MP, 1975 AIR 1378.

National Commission for Women, “Annual Report 2019–2020,” New Delhi, India, http://ncw.nic.in/annual-reports/annual-report-2019-2020.

Ibid.

Hélène Belleau and Pascale Cornut St-Pierre, “Conjugal Interdependence in Quebec: From Legal Rules to Social Representations about Spousal Support and Property Division on Conjugal Breakdown,” Canadian Journal of Law and Society/Revue Canadienne Droit et Société 29, no. 1 (Aug. 7, 2013): 43–58, https://doi.org/10.1017/cls.2013.34.

Catherine Powell, “Up from Marriage: Freedom, Solitude, and Individual Autonomy in the Shadow of Marriage Equality,” Fordham Law Review 84, no. 1 (Oct. 2015): 69–78.