Restitution of Conjugal Rights

The only uniform provision in all the personal laws in India is about the Restitution of conjugal rights. There is no uniformity between any provisions in the rest of the personal law.

Normally, the court cannot grant specific performance of marriage. However, but by a decree of restitution of conjugal rights, it is possible. Section 25 of the Hindu Marriage Act provides this remedy.

The constitutional validity of this provision was challenged several times. The Supreme Court has finally upheld the validity of this provision.

Lawful wedlock among two persons imposes an obligation on both the spouses to cohabit with each other and to live with each other. The expression "withdrawal of society" means cessation of cohabitation, to bring an end the consortium. The cessation of cohabitation or bringing to end of consortium should be the act of the respondent. The word "society" here means the same thing as cohabitation. Refusal to live with other spouse, refusal for marital intercourse, refusal to give company and comfort to each other, all amounts to withdrawal from society.

In a petition for restitution of conjugal rights, it is not required to show that the parties were cohabiting earlier. If the parties were not staying together earlier, the petition would lie when one of the parties intends to cohabit with the other. This petition can be presented even if the marriage is not consummated and the other party wants to consummate the marriage.

Defence of restitution petition: If the respondent has withdrawn from the society of the petitioner for a valid reason, it is a complete defence to the restitution petition. A ground for any matrimonial cause is obviously a reasonable excuse. But the reasonable excuse need not be equivalent to a ground for matrimonial cause. Reasonable excuse may mean much less than a ground of a matrimonial cause. Any matrimonial misconduct, which is grave and weighty, will amount to reasonable excuse. The following will amount to be reasonable excuse:-

• a ground for relief in any matrimonial cause,
• a matrimonial misconduct, not amounting to a ground of a matrimonial cause, if sufficient weighty and grave, or
• such an act, omission or conduct, which makes it impossible for the respondent to live with the petitioner.

If during the pendency of an appeal against decree for restitution of conjugal rights, the husband files a petition under s.13 of the Hindu Marriage Act for a decree of divorce on the grounds of desertion and cruelty, the appeal becomes infructuous.

Execution of a decree of restitution of Conjugal Rights: A decree for restitution cannot be executed by arrest of the judgment-debtor. But, under order 21 Rule 32 of the Code of Civil Procedure, 1908, financial coercion can be exercised for its enforcement, i.e. the decree can be executed by the attachment of property of the judgment-debtor.

Rule 32: "Where the party against whom a decree for restitution of conjugal rights has been passed, and he had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced. In case of a decree for restitution of conjugal right has been passed, and if he had an opportunity of obeying the decree and if he wilfully failed to obey it, the decree may be enforced in case of a decree for restitution of conjugal right by attachment of her/his property."

Rule 33 further provides for periodic payment of money if a decree for restitution of conjugal rights is complied with.

1. Notwithstanding anything in rule 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 payments as debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.
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 increasing or diminishing the amount or may temporarily suspend the same as the whole or 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.