RESTITUTION OF CONJUGAL RIGHTS
Section 9: Restitution of conjugal rights:
"When either the husband or the wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply by petition to the district Court for restitution of conjugal rights and the Court, on being satisfied the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation: Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society".
Order 21 Rule 32 of C.P.C. Decree for specific performance for restitution of conjugal rights,or for an injunction:
"(1) where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced (in the case of a decree for restitution of conjugal rights by the attachment of his property, or in the case of a decree for the specific performance of a contract, or for an injunction) by his detention in the civil prison, or by the attachment of his property, or by both.
(3) Where any attachment under subrule (1) or sub-rule (2) has remained in force for (six Months) if the Judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.
(4) Where the Judgment-debtor has obeyed the decree, and paid all costs of executing the same which he is bound to pay, or where, at the end of (six months) from the date of the attachment on application to have the property sold has been made or if made has been refused, the attachment shall cease.
Rule 33. Discretion of court in executing decrees for restitution of conjugal rights:
(1) Notwithstanding anything in R. 32, the Court either at the time of passing a decree (against a husband) for the restitution of conjugal rights or at any time afterwards may order that the decree (shall be executed in the manner provided in this rule).
(2) Where the Court has made an order under sub-rule (1), it may order that in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payment as may be just and if it thinks fit, require that the judgment -debtor shall, to its satisfaction secure to the decree-holder such periodical payment.
(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid and again revive the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money".
A combined residing of the above substantive and procedural provisions relating to the grant of relief of destitution of conjugal rights by Court makes it clear that the decree for restitution of conjugal rights contemplated to the granted under section 9 of the Act is intended by the statutory law to be enforced in species under O. 21 Rr. 32 and 33 by applying financial sanctions against the disobeying party. Additionally always a Court can enforce its decree through its contempt powers. The Judicial committee of the privy council in Moonshed Buzloo Rhueem v. Shumsoon Nissa Begum, (1867) 11 Moo Ind App 551, held that a suit for restitution of conjugal rights filed by a Muslim husband was rightly filed as a suit for specific persormance it is on the same lines that order 21 Rule 32 of the code of civil procedure speaks of a decree granted for restriction of conjugal rights as a decree of specific performance of restitution of conjugal rights. Conjugal rights connote two ideas. (A) "the right which husband and wife have to each other's society and (b) "marital intercourse". (See the dictionary of English Law by Earl Jowitt P. 453) In Wily v. Wily (1918) P. 1 "an offer by the husband to live under the same proof with his wife, each party being free from molestation by the other was held not an offer to matrimonial cohabitation". (See N. R. Raghavachariar's Hindu Law, 7th Edn. Vol II p. 980. Gupt's Hindu Law of Marriage P. 181 and derrett's Introduction to Modern Hindu Law para 308). In other words, sexual cohabitation is an inseparable ingredient of a decree for restitution of conjugal rights. It follows, therefore that a decree for restitution of conjugal rights passed by a civil Court extends not only to the grant of relief to the decree holder to the company of the other spouse, but also embraces the right to have marital intercourse of the enforcement of such a decree are firstly to transfer the choice to have or not to have marital intercourse to the state from the concerned individual and secondly to surrender the choice of the individual to allow or not to allow one's body to be used as a vehicle for another human being's creation to the state. Relief of restitution of conjugal rights fraught with such serious consequences to the concerned, individual were granted under section 9 of the Act enables the decree-holder through application of financial sanctions provided by order 21 Rules 32 and 33 of C.P.C. to have sexual cohabitation with an unwilling party even by imprisonment in a civil prison. Now compliance of the unwilling party to such a decree is sought to be procured, by applying financial sanctions by attachment and sale of the property of the recalcitrant party. But the purpose of a decree for restitution of conjugal rights in the past as it is in the present remains the same which is to coerce through judicial process the unwilling party to have sex against that person's consent and freewill with the decree-holder. There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to hte decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person The uninhibited tragedy involved in granting a decree for restitution of conjugal rights is well illustrated by Anna saheb v. Tara Bai . In that case, Division Bench of the Madhya Pradesh High Court decreed the husband's suit for restitution of conjugal rights observing ":but if the husband is not guilty of misconduct, a petition cannot be dismissed merely because the wife does not like her husband or does not want to live with him............." What could have happened to Tarabai thereafter may well be left to the eader's imagination . According to law, anna saheb against her will.
The origin of this remedy for restitution of conjugal rights is not to be found in the British common law it is the medieval Ecclesiastical law of England which knows no matrimonial remedy of desertion that provided for this remedy which the Ecclesiastical courts and later ordinary courts enforced. But the British Law commission presided over by Mr. Justice scarman, (as he then was) recommended recently on 9-7-1969 the abolition of this uncivilized remedy of restitution of conjugal rights accepting that recommendation of the British Law commission the British parliament through section 20 of the Matrimonial proceedings and property Act, 1970 abolished the right to claim restitution of conjugal rights in the English courts. Section 20 of that Act reads thus:
"No person shall after the commencement of this Act be entitled to petition the High Court or any country Court for restitution of conjugal rights".
But our ancient Hindu system of Matrimonial law never recognised this institution of conjugal rights although it fully upheld the duty of the wife to surrender to her husband. In other words, the ancient Hindu law treated the duty of the Hindu wife to abide by her husband only as an imperfect obligation incapable of being enforced against her will . It left the choice entirely to the free will of the wife. In Bai Jiva v. Narsingh Lalbhai (ILR 1927 Bom 264 at p. 268) a division Bench of the Bombay High Court judicially noticed this fact in the following words:
"Hindu law itself even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanction or procedure as compulsion by the courts to force her to return against her will".
It is to be noted that similar provisions as to restitution of conjugal rights exist in other personal laws as well. Muslim equates this concept with securing to the other spouse the enjoyment of his or her legal rights.5 Earlier, it was also attached with the specific performance of the contract of marriage. In Abdul Kadir v. Salima, the Allah bad 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. The laws relating to Christians6 and Parsis7 also deal with the concept of Restitution of Conjugal rights. To sum up, under all personal law, the requirements of the provision of restitution of conjugal rights are the following:
- 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.
The Explanation under Section 9 of the Hindu Marriage Act, 1955 puts specific statutory burden upon the person who has withdrawn from the society of the applicant to show reasonable excuse for withdrawing from the society of the applicant. Had it been a case of Section 9 of the Hindu Marriage Act, 1955, it would have been burden upon the respondent applicant to prove reasonable excuse for the withdrawal from the society of the applicant. The explanation under Section 9 of the Hindu Marriage Act, 1955 is as under:
Explanation: - Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
In the cases under Section 9 of the Hindu Marriage Act, the burden is upon the non-applicant to show cause for withdrawal from society of applicant and if no sufficient reason is shown by non-applicant for living separate from applicant, the Court can pass the decree for restitution of conjugal rights. Even after such decree, if non-applicant will not discharge his/her obligation and there is no restitution of conjugal rights between the parties for a period of one year, as per Sub-Clause (ii) of Sub-section (1A) of Section 13, the applicant of petition under Section 9 , can seek divorce decree.
It maybe true that no such specific provision has been made putting burden upon the person who has withdrawn from the society to show reasonable excuse for withdrawing from the society of the applicant for proceedings seeking divorce on the ground of desertion, but some principle can be applied when the fact of marriage is admitted and the applicant proves by his evidence that the non-applicant has withdrawn from the applicant and period of two years has passed from the presentation of the divorce petition. This burden upon the appellant is negative burden and, therefore, principle of law applicable for proving a negative issue, can be applied which shall be in consonance with the explanation under Section 9 of the Hindu Marriage Act, 1955.
The Appellant if would have continued with proceedings under Section 9 of the Hindu Marriage Act and would have obtained decree under said proceedings, he could have filed the petition for divorce an year after decree in proceedings under Section 9 of the Hindu Marriage Act.
Question rises can Section 9 & 13 be entertained simultaneously?
In the light of above reason, the pendency of petition under Section 9 of the Hindu Marriage Act, 1955 might have created unnecessary multiplicity of proceedings (i.e. divorce petition and RCR petition), contradiction and hurdle in deciding the matrimonial dispute between the parties.
If husband / wife are willing to wait for response for RCR, then you can withdraw the petition u/s 13. If you want a divorce then withdraw petition u/s 9 as things have gotten worse citing reasons as filed in petition u/s 13 of HMA. both the sections are contradictory in the stricto sensu terms. But in generic sense you have right to proceed with both. Or you can withdraw both - and wait forever.
Petition u/s 9 was suggested by lawyer just as a measure for bail if she files for criminal cases. In that case, (notice is never issued to her for RCR), there is no effective RCR for divorce consideration. So going for a fresh divorce case is the only option.