Restitution of conjugal rights: Explained In Detail
The provision relating to restitution of conjugal rights has been enacted in section 9 of the Hindu Marriage Act. The way it has been worded has led to some controversy.
Sub-section (1) lays down that a petition for restitution may be made on the ground that the respondent has without reasonable excuse withdrawn from his or her society and the court may pronounce the decree for restitution 'on being satisfied with the truth of the statements made in such petition and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.
Sub-section (2) then lays down that 'Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce'.
Sub-section (2) has now been repealed by the Marriage Laws (Amendment) Act, 1976.
The provision of restitution of conjugal rights in section 22 of the Special Marriage Act, 1954, is substantially the same as found in sub-section (1) of section 9 of the Hindu Marriage Act, 1955. The Provision for restitution of conjugal rights is also substantially the same in section 36 of the Parsi Marriage and Divorce Act, 1936 though it has been worded slightly differently. Section 32 of the Indian Divorce Act, 1869, enacts the remedy of restitution of conjugal rights, which is again substantially the same. Section 33 of the Act lays down:
Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which would not be a ground for a suit for judicial separation or for a decree of nullity of marriage. This is the source of section 9(2) of the Hindu Marriage Act, 1955. The draftsman of the Hindu Marriage Act merely added the words, 'or for divorce'.
The source of section 9(1) of the Hindu Marriage Act is section 32 of the Indian Divorce Act of which is almost a verbatim copy. The source of the provisions of sections 32 and 33 was the then existing English law. The result has been that Indian courts interpreting section 9 of the Hindu Marriage Act are torn between two views: is reasonable excuse equivalent to a ground of matrimonial relief or is it to be given its natural meaning where under reasonable excuse or reasonable cause may fall short of ground for matrimonial relief.25 Under the Parsi Marriage and Divorce Act, 1936 and the Special Marriage Act, 1954, the provision has created no difficulty of interpretation, as they do not have anything like sub-section (2) of section 9 of the Hindu Marriage Act. It is in this context that sub-section (2) of section 9 of the Hindu Marriage Act has been repealed. This brings the provision at par with the Special Marriage Act and the Parsi Marriage and Divorce Act. The Marriage Law (Amendment) Act, 1976 has added an explanation under which it is laid down that the burden of proving reasonable excuse shall be on the person who has withdrawn from the other's society. It seems that under its Letters Patent jurisdiction High Courts continue to have the power of giving the relief of restitution of conjugal rights to Jews and other communities. In fact, the lower courts have also been giving this relief to both Hindus and Muslims and other communities under the provisions of the Specific Relief Act read with the Code of Civil Procedure. Communities, whose personal law does not recognize restitution of conjugal rights, can still take advantage of those provisions.