when your partner leaves you - legally its Denial of conjugal rights!

when your partner leaves you - legally its Denial of conjugal rights!
September23

Posted In: Civil Law

Posted By: RASHICHOUDHARY

Tags: Indian Law, marriage, civil law

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when your partner leaves you - legally its Denial of conjugal rights!

Marriage is a holy sacrament and is recognised by Personal Laws which administer the terms like divorce, maintenance, custody, and restitution of conjugal rights.

CONJUGAL RIGHTS

Conjugal rights means the right of living together by means of entering into a religious bond with a life partner. In other words, it is the privilege right granted to the married couples which includes support, mutual relationship of companionship to have sexual intercourse with the spouses.

DENIAL OF CONJUGAL RIGHTS

Where any of the spouse i.e. the husband or the wife has without reasonable excuse, withdraws from the society of the other, the aggrieved spouse may approach the Court and file a suit for Restitution Of Conjugal Rights. The suit can be filed under Personal Laws.

RESTITUTION OF CONJUGAL RIGHTS

Restitution of Conjugal Rights - Section 9 of the Hindu Marriage Act, 1955, provides the subject of the restitution of conjugal rights. It provides as follows:

If one of the partner i.e. the husband or the wife living together, has without reasonable excuse, withdraws from the society of the other and refuse to come back to restore there marital life, the aggrieved partner has a right to approach the Court and file for restitution of conjugal rights, but petition to the Court for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition, that there is no legal ground why the relief should not be granted, may rescind the decree restitution of conjugal rights if it considers it just and appropriate to do so.

By the Marriage laws (Amendment) Act, 1976, clause (ii) of Section 9 has been omitted and an explanation has been added to it, which provides that- When either of the spouse has reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Thus under Section 9 the Court may decree restitution of conjugal rights, when-

  1. Where either of the party has without reasonable excuse withdrawn from the society of the other;
  2. Where the Court is satisfied of the truth of the statements made in the petition for restitution of conjugal rights; and
  3. Where the Court is satisfied that there is no legal ground why the relife should not be granted, may rescind the decree restitution of conjugal rights if it considers it just and appropriate to do so.

HIGHLIGHTED CASES

In Smt. Shanti Devi vs. Balbir Singh, [A.I.R. 1971 Delhi], the court held that in a petition for restitution it has to be seen whether the husband or wife as the case maybe, has withdrawn from the society of the other without reasonable cause or excuse. The second requirement is that the court must be satisfied of the truth of the statements made in the petition. Thirdly there should be no legal ground why the relief should be granted. In this case the petition of restitution of conjugal right against the wife failed on the ground that the behaviour of the husband has been cruel and torturesome to her. Moreover, the husband was having love affairs with a girl. The court held it to be a reasonable excuse for her to live apart from her husband.

In Sneh Prabha vs. Ravindra Kumar, [A.I.R. 1995 SC 2170], in an appeal against order confirming decree of restitution of conjugal rights, the Supreme Court felt that despite conciliation and much effort there were no chances of husband and wife living together. Accordingly instead of confirming the order for restitution of conjugal rights the Supreme Court granted divorce.

In Tularam vs. Smt. Mishri, [1979, M.P. High Court], the plea that the marriage was in contravention of the provisions of Section 5 (iii) of the Hindu Marriage Act, was not found to be a just excuse and it was held that decree of restitution of conjugal rights could not be refused.

What are valid grounds to defend the petition for restitution of conjugal rights?

The Courts in their decisions have held the following to be valid grounds for separate living disentitling the other spouse to a decree for restitution of conjugal rights:

  1. Grossly indecent behaviour.
  2. Extravagance of living on the part of the wife affecting the financial position and prospect of the husband.
  3. Excessive drinking carried to such a decree as to render it impossible for the duties of married life to continue or to be discharged.
  4. Refusal of marital intercourse without sufficient reason.
  5. Apprehensive of violence due to development of insanity in the petitioner.
  6. Agreement to live separate.

RECENT UPDATE

A report has been issued that declared the restitution of conjugal rights had no relevance in independent India and the existing matrimonial laws already recognised the denial of consummation as a ground for divorce. It  echoed the recommendation of the Committee and suggested the deletion of section 9 from the Hindu Marriage Act, 1955, section 22 of the Special Marriage Act,1954, and section 32 of Indian Divorce Act, 1869.

 

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