The restitution of conjugal rights means the re-establishment of the marital relationship between husband and wife because the prime objective of marriage is that parties will consummate it and enjoy the society and comfort of each other.
Remedies under Indian laws
In India, the remedy of restitution is available:
• to Hindus under section 9 of the Hindu Marriage Act, 1955.
• to Muslims under the general law.
• to Christians under sections 32 and 33 of the Indian Divorce Act, 1869.
• to Parsi under section 36 of the Parsi Marriage and Divorce Act, 1936.
• And under section 22 of the Special Marriage Act, 1954 for persons married under the Special Marriage Act.
Section 9 of the Hindu marriage Act states that, when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.
In Tirath Kaur vs Kirpal Singh, the question before the Punjab and Haryana High Court was ‘whether wife’s employment can be considered a ‘reasonable excuse’ to leave husband’s society and stay away from him. The court applied the traditional approach and held that the wife’s employment is not a reasonable excuse. The court further said that “the wife’s first duty is to submit herself to her husband and remain under his roof and protection.”
Again, in Gaya vs Bhagwati, the Madhya Pradesh High Court held that under Hindu society, the wife should perform matrimonial responsibility or obligation under the husband’s house, and she cannot take any unilateral decision.
In the above given judgments by Indian courts the main focus of the court was just on the wife, that whether she is performing her matrimonial duties or not. Courts had nothing to do with her rights and freedom, they are only concerned about her duties. Due to these issues, a writ petition in Ojaswa Pathak vs Union of India was filed in the Supreme Court, challenging the constitutionality of the restitution of conjugal rights present under multiple family laws, including section 9 of the Hindu Marriage Act, 1955.
The objection was raised on the ground that:
• This provision goes against a woman’s autonomy because it obliges her to return to her husband even if she does not want to go there.
• The legislation also went against the private interest of sexual autonomy for men and women.
• It forces the reluctant spouse to engage in unwanted sexual intercourse, thus violating Article 14 and Article 21 of the Indian Constitution.
• It imposes an unequal burden on women and is thus contrary to Article 14 and Article 15(1) of the Constitution.
The matter is still pending before the three judges bench of the Supreme Court.