During marriage, there are two kinds of relationships that are formed, namely, the marriage of the husband and the wife, and these relationships also provide a variety of rights and obligations. In the literal sense, the term “Conjugal Rights” refers to the right to remain together between a couple. The essence of the marriage is comprised of the rights and obligations of the couple known as the “Conjugal Rights”.
As in any marriage, there is the expectation that each spouse will be there to provide comfort and love for the other in times of need. In the event that either partner leaves the other for reasons that are not reasonably or sufficiently important, then the aggrieved party can ask the court for assistance.
Section 9 of the Hindu Marriage Act of 1955
When the aggrieved party seeks restitution of conjugal rights when either a husband or wife withdraws without reasonable excuse from the other, they may petition the district court. The court may decree restitution of conjugal rights upon being satisfied that the statements made in such petition are true and that no legal ground should be obstructing its grant.
It may also be inferred that Section 9 of the statutory constitution is the marriage saving clause, even if the spouse has been away without reasonable cause. Moonshee Bazloor v. Shamsoonaissa Begum is the first Indian case to apply this remedy, which was first used in England. In 1970, restitution of conjugal rights was removed from English matrimonial law.
In order to qualify for Section 9, three requisites must be met
- Staying together is forbidden.
- It must be unreasonable for one party to withdraw from the other.
- Couples in trouble must apply for restitution of conjugal rights
Section 9 of the Constitution is constitutional
There is a growing claim that restitution of conjugal rights violates the wife’s right to privacy and has been cited as an argument by several parties. The Supreme Court ruled in Kharak Singh v. State of UP that a fundamental part of freedom is the right to privacy. According to the Supreme Court, the right to privacy is a fundamental aspect of freedom. Gobind v. State of M.P. confronted the issue raised in Kharak Singh.
Associational freedom infringement
Despite our country’s constitutional right to associate with anyone according to their wishes, the matrimonial remedy of restitution of conjugal rights violates this right by compelling a wife to associate with her husband against her will. Huhhram Vs Misri Bai had the court order restitution against the wife’s will.
A violation of one’s right to reside and practice a profession as one sees fit
There is a freedom that we live in in our society to choose a career based on one’s personal preferences, but when conjugal rights are restitutionary, one may be forced to live with the partner without the other’s consent or interest. This is a violation of the freedom to live freely and practice any profession that is open to us. There have been several instances where the courts have attempted to provide redress. A pronouncement of the Supreme Court of India in Harvinder Kaur v. State can be summarized by saying that introducing constitutional law in the home would be like introducing it in a china shop.
An old proverb describes restitution and its connection to conjugal rights. A person cannot reunite with another if he or she feels separated emotionally. Generally, restitution of conjugal rights is one of the best matrimonial remedies because it forces the couple to save their marriage, but it cannot guarantee effectiveness. Natural law theory is viewed negatively by some.