Restitution of

conjugal rights
 introduction
• Marriage is not something we build from scratch. Instead, we enter the sacred estate of
matrimony using the formal language of the wedding ceremony. Like any relationship,
marriage will have its ups and downs. The constitution's authors have created remedies to
easily manage any issue when the breach between the couples gets a little out of hand.
Under the Hindu Marriage Act, 1955, a remedy is called “restitution of conjugal rights.”
The courts will step in and require a spouse to return to cohabitation if they choose to leave
the marital residence and the decision is not "reasonable." The laws in India that guard
against rape and sexual assault are archaic. One such offence that does not now carry the
appropriate sentence is marital rape.
• Marital rape is still not seen as a serious crime in some sectors of society. It involves sexist
laws that only undermine a woman's dignity. It is acceptable to argue that "restitution of
marital rights" is problematic and brutally disregards a woman's right to a life with dignity,
her freedom to select her means of subsistence, and her right to practise whatever she
chooses. Using several case laws, this research article will analyse the uncertainty
surrounding the constitutional legitimacy of such a clause.
 Historical background
• The Jewish laws are where the idea of restitution of conjugal rights first appeared.
It was incorporated into the Indian legal system through the English Common
Law of the British Raj rather than the Dharma Shastras or any other personal laws.
The Privy Council initially enacted it in India in 1866, and through judicial
interpretation and legislative action, it eventually made its way into the Hindu
Marriage Act of 1955, special Marriage Act 1954, Parsi marriage and Divorce Act
1988, Divorce act 1869 and Muslim personal laws.
 Meaning of restitution of conjugal rights
• Restitution of Conjugal Rights is a notion that consists of two key words. These are "Conjugal Rights," which are
marital rights, and Restitution, which is the restoration of anything. In the event that these rights have been
breached, it entails the restoration of the aggrieved party's matrimonial rights. Therefore, the aggrieved party has the
right to apply the court for the relief of restitution of conjugal rights if either party to a marriage withdraws from the
society of the other without a good reason. If there are no legal obstacles to such a decree, the court will give relief.
The Hindu Marriage Act's Section 9 provides the legal meaning of restitution of conjugal rights.
The following requirements must be met in order to receive a decree:
• 1. The other spouse has left the petitioner's social circle.
• 2. There isn't any justification for such a withdrawal. The respondent has the burden of evidence if they claim a valid
basis for doing so.3. The petition's assertions have been accepted by the court.4. There are no legitimate reasons to
reject the directive. Only when a husband and wife are legally wed and one of them has irrevocably left the other's
social circle without good cause is this right granted. Vinod Kumar Kejriwal was previously married, according to
the petitioner wife in the case
Ranjana Kejriwal v. Vinod Kumar Kejriwal
• The petitioner's wife claimed that the husband had concealed the fact that he was already married from her. The
court ruled that because there isn't a legal marriage between the two, the petition for recovery of conjugal rights
cannot be maintained. As a result, the court refused to award the relief.
 Burden of proof
• According to a legal norm known as the burden of proof, the parties must show
that a claim is true or false based on the facts and supporting documentation. The
petitioner has the initial onus of proof in a case of restitution of marital rights. The
petitioner must demonstrate that the respondent left the petitioner's social circle
without justification. The onus of proof transfers to the respondent to establish
that the petitioner's departure from society was due to a justifiable excuse or cause
if the petitioner is successful in carrying its burden .
 Why this has been chalanged?
• This law has been contested on the grounds that it infringes on everyone's fundamental right to privacy,
which is one that must be protected. Restitution of conjugal rights is argued to be a coercive governmental
action that compels the aggrieved spouse to live with the other spouse in a court petition that was filed. As
a result, it contradicts both Article 21 of the Indian Constitution, which protects the right to live with
dignity, and Article 14 of the Indian Constitution, which ensures equality for all. Since the spouse is made
to live with the other, it violates Article 21.
• This clause's challenge has also been motivated by the fact that it conflicts with other Supreme Court
rulings from the past. In Josephine Shine v. Union of India, the Supreme Court ruled that a married
woman's right to privacy and bodily autonomy cannot be violated by marriage. This law, however, specifies
the opposite. How can a court order two adults to live together if one of them doesn't want to if everyone
has the right to privacy and bodily autonomy?
• The clause adversely affects women disproportionately, despite the fact that this law is ex-facie gender-
neutral in that it permits both the wife and the husband to seek restitution of conjugal rights and to petition
the court for the same. Because marital rape is not a felony, women are frequently called back to their
marital homes as a result of this clause, making them vulnerable to such forced cohabitation. Legal experts
have also raised a number of objections regarding the question of whether the state can have such a strong
interest in upholding the institution of marriage that it permits legislation enforcing cohabitation of
spouses.
• This clause serves as a defence against alimony and divorce proceedings. The other spouse responds to an
aggrieved spouse's petition for divorce by submitting a petition for restitution of conjugal rights. As a
result, this clause has been abused several times.
 Constitutional validity
• There were spirited arguments in the parliament for and against this idea at the time the
provision of restitution of conjugal rights was introduced in the Special Marriage Act and
Hindu Marriage [Link] the matter of Sareetha v. T. Venkatasubbaiah2, the petitioner
argued that the restoration of conjugal rights violates the fundamental rights guaranteed
by the Constitution, notably Articles 14 and 21, and as a result, should be declared
unconstitutional. According to Justice Choudary, Section 9 violates Article 21's
guarantees of the right to privacy and the right to a dignified life since it is cruel and
brutal.
• Since Section 9's goal is to maintain marriages, it was determined in the case of
Harvinder Kaur v. Harmander Singh that it is not [Link] the end, the Hindu
Marriage Act's section 9 was maintained as constitutionally lawful by the Supreme Court
in the case of Saroj Rani v. Sudarshan. The court noted that the goal of this section is to
reconcile the parties who are estranged so that they can coexist. The Indian Constitution's
Articles 14 and 21 have nothing to do with the privacy of the home or marital life.
 conclusion
• Restitution of Conjugal Rights is frequently stated explicitly as being based on the good faith of the
people and intended to prevent divorce or separation while giving the utmost priority to maintaining the
sanctity of marriage. However, it will also interfere with a person's right to be left alone because it may
generally force a person to live with their partner even if they don't want to, which may invade their
[Link], it highlights a delicate scenario that requires careful consideration by the courts. A
balance should be kept between the two, as taking a strict stance on either component could proved to be
disastrous for both an individual or the society as a whole
• Restitution of Conjugal Rights plays a vital role in society, so the courts should use their wise discretion,
ensure the utmost care, and refrain from engaging in judicial adventurism when deciding whether or not
it is still relevant.

the movie Thappad’s trailer begins with Taapsee Pannu hearing: 'Restitution of Conjugal Rights, a legal
notice to return to your husband's home.' Her consent is not asked. Isn't it time we bid goodbye to this