Restitution of Conugal Rights
Restitution of Conugal Rights
INTRODUCTION
MARRIAGE ENJOINS some rights and obligations on both the spouses. These rights and obligations are
equal in some respects to both the spouses but unequal in some other respects. One of these obligations is
that both spouses will cohabit with each other. It implies that the parties to marriage will live together as
husband and wife. It is one of the express conditions in the nuptial vow of the Hindus that each party is to
become the associate of the other.1 According to Manu, Let mutual fidelity continue till death. Let a man
and woman united by marriage, constantly beware, lest at any time disunited they violate their mutual
fidelity.2 And the sages denounced the desertion or neglect of either party by the other without just cause
as an act punishable in this world and in the next.3
However, an agreement on the part of the husband entered into at the time of the marriage that he will not
be at liberty to remove his wife from her pa rents abode to his own abode has been held to be void as
being contrary to Hindu law as well as to public policy.4So far the duties of the husband and the wife with
respect to each others person are reciprocal. As regards rights, perfect equality in between the married
couple has so far not been allowed by any system of law. If there be inequality, it has always been in
favour of man. To use the language of Bentham : In his hands the power maintains itself. Give the
authority to the woman, and every moment a revolt would break out on the part of her husband5 This
inequality was originally very great, but the tendency of society has been to reduce it as far as possible.
According to Banerjee the Hindu law In respect of this inequality partakes to some extent, no doubt, of
the character of other archaic systems, but on the whole, it is far more equitable towards the female sex
than most of those systems. 6
The remedy of the restitution of conjugal rights is based upon the concept of good ancient days about
marriage when the wife was considered as property. Actually in Hindu law corrective measures were
provided for wifes faults7, but it was not peculiar to Hindu law only. On the contrary Manus authority is,
1
in this instance, almost balanced by a text of high authority, which says : strike not even with a blossom a
wife guilty of a hundred faults.8 A virtuous wife was placed at high position by all sages and it was
ordained that such a wife should be revered by the husband.
EVOLUTION
OF
THIS
REMEDY
EVOLUTION
OF
ground for divorce, this can be effected more appropriately even without the decree of restitution of conjugal rights
by obtaining an order of divorce independently, on the ground of desertion. (There is not much difference, in the
desertion after the decree and normal desertion. The difference in the time period of the respective desertion is
negligible). If the real purpose of the restitution proceedings is financial assistance in any case, then the proper
remedy for this would be section 22 of the Matrimonial Clauses Act,1965 (Maintenance). In most of the cases, no
steps are taken after the petition for restitution is filed. It is mostly because, the applicants realise the futility of such
proceedings and the fact that a decree is not going to bring their partner back. A court directing individuals to live
together is hardly an effective measure of attempting to effect reconciliation. The order has no teeth and brings law
to disrepute, it is suspected that few, if any, decrees are obeyed and the futility of the decree is well illustrated by
Nanda v. Nanda P. 351, where a wife, having obtained a restitution decree, went to the husbands flat, and the court
was prepared to grant an injunction to restrain her from molesting him and entering the premises. The very fact
that the remedy of restitution of conjugal rights is so rarely used indicates that the remedy is not an effective one.
Several reasons as to the retention of this remedy were also stated in its report, by the Law Commission. On
comparison, the demerits or the arguments in favour of the abolition of the remedy outweighed the positives or
reasons for its retention. All of the reasons stated in the report match and fit into the Indian scenario in a perfect
manner. The problems outlined in the report completely comply to the present deplorable situation of the remedy in
India. Hence, the remedy should be done away with in the similar lines.
and wife in them are unequal and treating unequals equally is neither just not fair. Since this makes the
remedy oppressive for the wives, while benefiting the husbands. These cases mark the evolution of a different
line of thought in family jurisprudence.
breakdown of marriage is introduced as a ground deserves to be considered by the courts. While some might
argue that this section aims at preserving the bond of marriage, the question we should possibly ask ourselves
is whether it is worth sacrificing our fundamental rights for a marriage beyond saving?