Restitution of conjugal rights

1. Restitution of conjugal rights • Rig veda-o bride and bridegroom! You two stay here. Never be disunited. Enjoy with the full span of life. play with children. Be happy in your home. • Manu smirti-he only is a perfect man who consists his wife, himself and offsprings. • HL stress on the wife implicit obediance to her husband. • It is never imagined that wife would desert husband and refrain from giving conjugal bliss to husband.

2. Restitution of conjugal rights • Ingrediants • There should be valid marriage.-because this right is inherently present in the marriage. • Opposite party may refuse that he/she is married with other. • One party says marriage was in violation of sec 5(iii)-there is no ground to refuse relief of RCR because marriage is valid.

3. Restitution of conjugal rights • Withdrawn from the society of other • It involves a mental process besides physical separation. • The act of temporarily leaving the matrimonial home would not amount to withdrawal as “animus decidendi” i.e intention to withdraw permanently is missing. • Where wife and husband live separetely and meet occasionally due to exceptional circumstances [No withdrawal] • Tirath kaur v kripal singh AIR 1964 punj • Swaraj Garg v.K.M.Garg AIR 1978 Del

4. Restitution of conjugal rights • Object of RCR-to bring the spouses together to enjoy a conjugal life. • Withdrawal without reasonable excuse- • Reasonable excuse is not defined in Act. • Sec 125 cr.p.c uses ‘just ground’ for refusing to live with the husband. • Sec 18 of HAMA allows wife to live separetely without forfeiting her right for maintenance. • So interpretation will be on similar line.

5. Restitution of conjugal rights • It will be duty of respondent to satisfy court about this reasonable cause. • Some examples • Husband refused to have sex with wife. • Husband was keeping a concubine in house. • Wife being teetotaller and vegitarian was compelled to take wine and non-veg. • Wife working at different place[as she has no animus dicerendi.[Garg case]

6. Restitution of conjugal rights • One family members suffering from tuberculosis , wife refuse to live there but ready to live in another flat with husband. • Cruelty [anti thesis to love and affection]–physical or mental is sufficient ground to live separetely • False allegation as to character of other party. • Habitual ill treatment of wife or husband • Allegation of adultery which is found baseless. • Illegal demand of dowry • This list is illustrative not exhaustive.

7. Restitution of conjugal rights • Cases where court awarded RCR • Wife withdraws because husband is not earning. • Husband unable to provide fine clothes to wife.etc • Here one party files case u/s 9 for RCR and other files case u/s 13 for divorce on ground like cruelty. • Wife goes to parent ‘s home. Husband files a case of divorce on ground of desertion. court may ask to go for RCR.

8. Restitution of conjugal rights • Sec 9 and impotency • If Either of parties in healthy physical condition refuses to have sexual relationship, then other can say it as reasonable ground. In such a case marriage can be held voidble.

9. Restitution of conjugal rights • Burden of proof • Sec 101 Evidence Act –whoever desires any court to give judgement in his /her favour-must prove the existence of fact upon which legal rights depend.

10. Restitution of conjugal rights • Important Notes • Reasonable excuse [less strict] should not be confused with reasonable cause or justification. • Grievances of normal married life, minor quarrels and ordinary wear and tear of married life are not sufficient grounds . • Principle of res judicata applies.

11. Restitution of conjugal rights • Decree of RCR can not be executed by compelling respondent to live and cohabit with petitioner. • Injunction –there is no such provision in Act.

12. Constitutional validity of Restitution of conjugal rights. • T .sarita v. T. Venkata subhayya, AIR 1983 AP • Held that sec 9 is violative of Art.14 and Art.21 • Decree applying financial sanction was used against disobeying party. • Court said it is choice of wife to allow body to be used or not. [violation of privacy]

13. Constitutional validity of Restitution of conjugal rights. • Harvinder kaur v. Harmander singh, AIR 1984 Del • Delhi held it is not violative of Art.14 and 21. • Introduction of constitutional law in home is most inappropriate and it is like introducing a bull in china shop. • In the privacy of home and married life neither Art 14 or 21 have any role.

14. Constitutional validity of Restitution of conjugal rights. • Saroj Rani v. Sudarshan kumar chadha AIR 1984 SC • Court overruled the judgement of T.Sarita case. • Court said O 21.Rule 31 & 32 CPC[execution of decree and order] provides only financial sanction to serve social purpose to prevent break-up of marriage.