When The Decree of Restitution of Conjugal Rights Be Refused?

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INTRODUCTION

Restitution of conjugal rights is one of the various reliefs available to spouses under the Hindu Marriage Act, 1955,[i] the Parsi Marriage and Divorce Act, 1936,[ii] the Special Marriage Act, 1954[iii] and the Indian Divorce Act, 1869.[iv] Section 9 of The Hindu Marriage Act, 1955 states about Restitution of conjugal rights where it says that if the husband or wife has moved away from the other’s society without a valid excuse, then the aggrieved person can apply to the district court for restitution of conjugal rights and the court if satisfied with the truth of the statements made in such petition and that there is no legal ground for the application to be refused, accordingly can order restoration of marital rights The idea of providing for restitution by a court decree is to preserve the marriage as much as possible by allowing the court to intervene and ordering the withdrawing party to join another. This section was amended by the Marriage Laws (Amendment) Act, 1976 where the Explanation was added and sub-section (2) was omitted. Relief under this section shall be limited to the partners of a valid marriage. When it was found that the marriage was not solemnized or registered, relief was denied.

GROUNDS FOR REFUSAL OF CONJUGAL RIGHTS

The decree of Restitution of conjugal rights can be rejected for many reasons. For example, for any reason on which the respondent could have requested for a decree for judicial separation or for nullity of marriage or for divorce can be a ground to refuse decree of Restitution of conjugal rights. So if the petitioner is guilty of desertion, cruelty, adultery, insanity, leprosy, Venereal Disease, converted to another religion or ceased to be a Hindu, renounced the world or presumed death, then the respondent can refuse decree of Restitution of conjugal rights. The reasonable excuse for withdrawing from the society of the petitioner has to be grave and weighty, then it can also be a ground to refuse the decree of Restitution of conjugal rights.

What constitutes a “reasonable excuse” depends on the truth of the case and the circumstances. “Reasonable excuse” should be “fair excuse” or “logical excuse”. It must be sufficiently weighty and convincing. It should be more than a mere whim. If there is any conduct on the part of the petitioner that this petitioner is taking advantage of his own wrong or any disability for the motive of such relief, then it can be a ground to refuse decree of Restitution of conjugal rights.[v] If there’s collusion with the respondent[vi] or if there is unnecessary or improper delay in instituting the proceeding[vii] then it can be a ground to refuse decree of Restitution of conjugal rights. The grounds which are available to a wife to claim maintenance can also be a ground to refuse decree of Restitution of conjugal rights.

WHEN IS “REASONABLE EXCUSE” RATIONAL?

Justice Paripoornan in Annie Thomas v. Pathrose[viii] observed that “What is ‘reasonable excuse’ depends upon the facts and circumstances of each case. Reasonable excuses should be unbiased justification or sensible justification. It must be sufficiently weighty and convincing. It should be more than a mere whim.” In P.S.J. Manickavasagam v. Chandramathi Dayamani[ix] there was a similar situation where  Venkatadri, J. said that as far as the final consequences of divorce are concerned he had been relieved of the responsibility of investigating various incidents spoken to in the evidence during the years 1949 to 1959 because if the last act of cruelty, namely, the incident of 15-5-1959 is established by unimpeachable evidence, that would be plenty answer to the claim of husband for restitution of marital rights and agreeable basis for the claim of the wife for judicial separation. In the end the learned Judge came to the conclusion that the husband is not entitled to a decree for restitution of conjugal rights and that the wife is entitled to a decree of judicial separation because she has presented satisfactory evidence of cruelty on the part of the husband and consequently granted a decree of judicial separation.

In Sushila Bai v. Prem Narayan,[x] the husband left his wife and has been completely insensitive towards her ever since. This behavior was enough to prove that he moved away from his wife’s society. In Kusum Lata v. Kampta Prasad,[xi] the husband had completely failed to look after his wife. In the case of Naveen Kohli v. Neelu Kohli,[xii] Sanghamitra Ghosh v. Kajal Kumar Ghosh[xiii]  and in the case of Samar Ghosh v. Jaya Ghosh,[xiv] the Court said that in cases where divorce has been going on uninterruptedly for a long time and the marriage has become a fantasy, then it would be appropriate to dissolve the marriage. The petition of restitution of conjugal right was filed by her husband and the court dismissed his pleas. The court can also refuse to grant order of restitution of conjugal rights on the failure by the husband to perform marital obligations. In the case of Moonshi Buzloor Ruheem v. Shamsonnissa Begum,[xv] it was held that if a husband treats wife with cruelty or there is gross negligence on the part of husband for performance of marital obligations, then it is the logical reason for declining him remedy. Also in the case Bai Jiva v. Narsing Lalbhai,[xvi] the Court said that a wife can’t be forced to live with her husband against her will. In the case of Seetha Yamma v. Venkataramma,[xvii] it was held by Bum, J. that in a case of restoration of conjugal rights, the court will consider the conduct of all parties and if it is shown that the husband has neglected his wife and the case started by the husband is not well-intentioned, the case will be dismissed.

CONCLUSION

The burden of proof that the respondent has without reasonable excuse, withdrawn from the society of the petitioner, must rest on the petitioner. However, the burden of proving a reasonable excuse must rest on the respondent. The mere circumstance that the wife’s allegation of cruelty in defense in any such case if not proved, would not displace that burden.


[i] Hindu Marriage Act, 1955, section 9

[ii] Parsi Marriage and Divorce Act, 1869, section 36

[iii] Special Marriage Act, 1954, section 22

[iv] Indian Divorce Act, 1869, section 32

[v] Hindu Marriage Act, 1955, section 23(1)(a)

[vi] Hindu Marriage Act, 1955, section 23(1)(c)

[vii] Hindu Marriage Act, 1955, section 23(1)(d)

[viii] Annie Thomas v. Pathrose, (1988) 2 KLT 237

[ix] P.S.J. Manickavasagam v. Chandramathi Dayamani, AIR 1965 Mad 468

[x] Sushila Bai v. Prem Narayan, AIR 1964 MP 225

[xi] Kusum Lata v. Kampta Prasad, AIR 1965 All. 280

[xii] Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558

[xiii] Sanghamitra Ghosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220

[xiv] Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511

[xv] Moonshi Buzloor Ruheem v. Shamsonnissa Begum, (1867) 11 MIA 551

[xvi] Bai Jiva v. Narsing Lalbhai, AIR 1927 Bom 264

[xvii] Seetha yamma v. Venkataramma, AIR 1940 Mad 906 (V)

Written By

Saptarshi Roy

St. Xavier’s University, Kolkata

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