These personal laws govern concepts like divorce, maintenance, custody and restitution of conjugal rights (RCR). In this blog post, we shall discuss the basic concepts of RCR and the procedure to be followed while filing for a petition of RCR. This blog post will also look into the constitutional debate of the validity of this concept in the modern scenario.

1. RESTITUTION OF
CONJUGAL RIGHTS
SUBMITTED BY :-
SHRISTI KUMARI
C-73
BBA LLB (2ND YEAR)

2. INTRODUCTION
Family and marriage are the basic institutions of any society.
Every society has certain norms and rules which have led to the
development of key concepts such as usage and custom.
Marriage as an important institution has been recognized in the
personal laws of all religions. With the passage of time, the
complexities increased with areas such as divorce, judicial
separation and conjugal rights came up in personal law and it
became necessary to codify the laws relating to marriage in India.
This led to the codification of marriage as in the Hindu Marriage
Act 1955, Indian Divorce Act 1869, Parsi Marriage and Divorce
Act, 1936 and various other acts. Interesting to note in the
concept of marriage is the existence of rights between spouses.
These rights may also be called Conjugal Rights. When there
occurs a separation in marriage, then a remedy in the form of
restitution of these conjugal rights is offered to the disadvantaged
party.

3. ORIGIN
The principle of restitution of conjugal rights has been
borrowed into Indian laws from English law. In English law,
wife and husband were treated as a single entity and therefore
a wife could not sue her husband or vice versa. The remedy
for restitution for conjugal rights owes its origin to the
Ecclesiastical Courts of the West. Such courts by decree of
restitution of conjugal rights compelled the recalcitrant spouse
to discharge the due obligation towards the complaining
spouse.

4. MEANINGRestitution basically means restoring to a party to its original
place
The institution of Marriage is often regarded as a primary
institution in this society of ours. An individual’s existence in the
society is guided by institutions which are often regarded as
established forms of procedure characteristic of group activity.
Later on, a marriage between two individuals creates a set of
rights and obligations between the parties involved. These rights
may be called as “conjugal rights”. The word conjugal, in its
essence means, “of relating to marriage or to married persons and
their relationships”

5. PROVISION UNDER MUSLIM LAW
The concept of restitution of conjugal rights is
conceptualized in the form of a civil suit, under general
law, as opposed to a separate petition in other laws, as
follows-
“Where either the husband or wife has, without lawful
ground withdrawn from the society of the other, or
neglected to perform the obligations imposed by law or
by the contract of the marriage, the court may decree
restitution of conjugal rights, and may put either part
securing to the other the enjoyment of his or her rights.”

6. REMEDY OF RESTITUTION OF CONJUGAL
RIGHTS UNDER MUSLIM LAW
Restitution of the conjugal rights to Muslims under general
laws:
The conceptualization of the provision for restitution of conjugal
rights under Muslim law by Tayabji is as follows:
“Where either the husband or wife has, without lawful ground
withdrawn from the society of the other, or neglected to perform
the obligations imposed by law or by the contract of marriage, the
court may decree restitution of conjugal rights, may put either
party on terms securing to the other the enjoyment of his or her
rights”
Thus the Muslims equate this concept with securing to the other
spouse the enjoyment of his or her legal rights. Earlier, it was also
attached with the specific performance of the contract of marriage.
In Abdul Kadir v. Salima ,the Allahabad High Court decided that
the concept of restitution must be decided on the principles of
Muslim Law and not on the basis on justice, equity and good
conscience.

7. CASE LAWSSHAKILA BANU V. GULAM MUSTAFAR
The Bombay court laid down the important principle that
in a husband’s suits for restitution of conjugal right, the
wife’s evidence about cruelty would not require.
Hence the respondent had filed a suit for restitution of
conjugal rights. The wife contended that her husband,
after beating and ill-treating her, had send her to reside
in her father’s house asking her not to return. The civil
judge relied on her evidence and held that there were
sufficient ground to infer ill-treatment; further that the
circumstances were such as to make it unsafe for her to
return to the husband’s place. Accordingly , the suits
was dismissed.

8. 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”

9. THANK YOU