Restitution of conjugal rights a comparative study among indian personal laws

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The aim of the ppt is to understand what restitution of conjugal rights implies with respect to different Indian personal laws and to do a comparative study of the provisions for restitution of …

The aim of the ppt is to understand what restitution of conjugal rights implies with respect to different Indian personal laws and to do a comparative study of the provisions for restitution of conjugal rights available under Hindu and Muslim Law. The report introduces the reader to the concept and origin of restitution of conjugal rights, different provisions available for restitution under Indian personal laws and what are the main constituents of the restitution of conjugal rights in the first chapter. Next, the constitutional validity of the relief for restitution of conjugal rights and the application of the restitution provision across various communities – Hindu, Muslim, Christian and Parsi. Finally in the last chapter, the comparison of the various provisions and applications of the restitution of conjugal rights under different Indian Personal Laws of Christian, Hindu and Muslim law is taken up.

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    Anuja Aiyappan
  • 2. Restitution of Conjugal Rights: Concept and Origin
    • RCR neither recognized by the Dharmashastra nor did the Muslim law made any provisions for it.
    • 3. It came with the Raj
    • 4. The concept of restitution of conjugal rights was introduced in India in the case of MoonsheeBuzloorRuheemv. Shumsoonissa Begum, (1867) 11 MIA 551, where such actions were regarded as considerations for specific performance.
  • 5.
    • Hindus under Section 9 of the Hindu Marriage Act, 1955,
    • 6. Muslims under general law,
    • 7. Christians under Section 32 and 33 of the Indian Divorce Act, 1869,
    • 8. Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936
    • 9. Persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954.
  • 10.
    • Under all personal law, the requirements of the provision of RCR are the following:
    The withdrawal by the respondent from the society of the petitioner.
    The withdrawal is without any reasonable cause or excuse or lawful ground.
    There should be no other legal ground for refusal of the relief.
    The court should be satisfied about the truth of the statement made in the petition.
  • 11.
    • The court will normally order restitution of conjugal rights if:
    The petitioner proves that the respondent spouse has without reasonable excuse withdrawn from his/her society
    The statements made by the aggrieved spouse in the application are true, and
    There is no legal ground why the petitioner’s prayer should not be granted
  • 12.
    • The court has held in various cases that the following situations will amount to a reasonable excuse to act as a defence in this area
    A ground for relief in any matrimonial cause.
    A matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficiently weighty and grave
    Such an act, omission or conduct which makes it impossiblefor the respondent to live with the petitioner.
  • 13. Constitutionality: Relief of Restitution of Conjugal Rights
    • The constitutional validity of the provision for RCR has time and again been questioned and challenged.
    • 14. In 1983 before the AP HC in T.Sareetha v. T. Venkatasubbaiah AIR 1983 AP. 356 where the Court held that the impugned section was unconstitutional.
    • 15. Supreme Court in SarojRaniv. SudharshanAIR. 1984 SC 1562 upheld the constitutional validity of the Section 9 of the Hindu Marriage Act, 1955
  • Application of the Provision in Different Communities
    • Hindus :
    Any ground on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce;
    Reasonable excuse for withdrawing from the society of the petitioner;
    Any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of his or her own wrong or any disabilityfor the purpose of such relief;
  • 16.
    • Muslims :
    Crueltyby spouse or in-laws
    On the failure by the spouse to perform marital obligations
    On non-payment of prompt dower by the husband
    • Christians :
    Cruelty of husband or wife
    If either of the spouse is insane
    If any one of the spouse marries again
  • 17.
    • Parsi :
    Where a husband/wife shall have deserted or without lawful cause ceased to cohabit with his/her spouse, the party so deserted or with whom cohabitation shall have so ceased, may sue for the restitution of his or her conjugal rights and the court if satisfied of the truth of the allegations contained in the plaint and that there is no just ground why relief should not be granted, may proceed to decree such RCR accordingly.
  • 18. Provisions under Hindu, Christian and Muslim Law
    • A petition for RCR is maintainable only when there is a valid marriage.
    • 19. A Hindu and Christian can file a petition for RCR while under Muslim law a suit in a civil court has to be filed.
    • 20. The concept of gender discrimination has not been incorporated in the Hindu and Christian Marriage but a Muslim husband can defeat wife’s petition for restitution at any time by pronouncing talaqon her
  • 21.
    • A decree for RCR cannot be refused in a marriage in violation of the ageunder Hindu and Christian law while in Muslim law under Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 when the marriage has been avoided in the exercise of option of puberty the suit for RCR fails
    • 22. Under Hindu and Christian law polygamy not allowedwhile under Muslim law controlled polygamy is allowed
    • 23. Hindu law as well as Christian law the courts have the wide power and discretion to decide what constitute cruelty. While in Muslim law, Section 2 (viii) of the Dissolution of Muslim Marriage Act, 1939, both physical cruelty as well as legal crueltytogether with all instances of cruelty is included under the definition of cruelty.
  • 24.
    • Under Hindu and Christian law separation agreements are not allowedwhile under Muslim law valid separation agreement is a good defence to a suit for RCR
    • 25. The concept of dower is specific to Mohammedan law only. A Muslim wife living separate from the husband on account of non payment of prompt dower, RCR cannot be granted subjected to certain conditions.
  • Steps for filing a suit/petition for RCR
    Decide the appropriate court and its location having jurisdiction to adjudicate the case
    Drafting the Plaint
    Remitting the Court fees into the Court and filing the Plaint
    Getting process served to the respondents
    Initial hearing
    Filing of written statement by the respondents
    Framing of Issues by the Court
    Posting of the suit for evidence
    Filing documents & Leading Evidence
    Evidence by the respondents
    Posting for Final Arguments
    Posting the case for Pronouncement of the decree & Passing of Decree
  • 26. Conclusion
    It is a remedy that is aimed at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation
    The court cannot compel the defaulting spouse to physically return to the comfort-consortium of the decree-holder spouse
    “You can take a horse to the water, but you can't make him drink”