Last Updated on April 11, 2020 by Legalseva.net
Meaning of Marriage:
The famous English case law Hyde v. Hyde and Woodmansee (1886) L R 1 P and D 130, defined marriage as “Voluntary union for life of one man and one woman, to the exclusion of all others.” Since then this definition holds good in every way to define the actual meaning of Marriage. When we sneak into the Hindu Law, Marriage is an amalgamation of:
- A contractual Relationship
- A Sacramental Tie
In a nutshell, Marriage is “voluntary union” to constitute a relationship of husband and wife.
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Conjugal Rights:
Conjugal rights means mutual rights and privileges as in the case of husband and wife. These rights include mutual rights of companionship, support, sexual relations, joint property rights, etc.
Restitution on the other hand means the restoration of something lost to its owner.
Thus, when a decree of Restitution of Conjugal Rights is granted by the Court, both the husband and wife are directed to cohabit.
Section 9, The Hindi Marriage Act, 1955:
Restitution of conjugal rights- When either the husband or the wife has, without reasonable excuse, withdrawn from the Society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights accordingly.
- This section provides that the onus lies on the party who has withdrawn from the society.
- The decree of Restitution Of Conjugal Rights (ROCR) can be executed by attachment of respondent’s property.
- Restitution pre-supposes a valid marriage.
- The court competent to pass a decree of ROCR should be satisfied that:
- The respondent has withdrawn from the society of the petitioner
- That the withdrawal is without any “reasonable cause”
- And that there is no legal ground why the relief should not be granted.
The term “society” used in the section means the same thing as cohabitation. The withdrawal from society may include withdrawal from totality of conjugal relationship such as refusal to live together, refusal to have marital intercourse and refusal to give company and comfort. Of course mere refusal to have sexual intercourse would not amount to withdrawal from society. In a petition, it is not necessary to show that the spouses were cohabiting earlier, the cause of action arises when the “intention not to cohabit” arises. The respondent on the other hand has to establish a Reasonable Excuse. Reasonable excuse may be any matrimonial misconduct which is grave and weighty.
Also Read- File Divorce Online in India
Constitutional validity of ROCR
The remedy of ROCR when granted by the court, it is the duty of the guilty party to cohabit with the aggrieved party. But this section violates certain Fundamental rights granted by the Indian Constitution:
- Right to privacy (Art.21)
- Right of Association (Art.19(1)(c))
- Right to reside and settle in any part of India (Art.19(1)(e))
- Right to practice any profession (Art.19(1)(g))
Also Read- Legal Notice to Wife or Husband
Case laws
- T Sareeta v. Venkatasubbiah AIR 1963 AP 356
In which the Andhra Pradesh high court held sec 9 of The Hindu Marriage Act, 1955 to be violative of the Constitution and the impugned section was unconstitutional. Justice Chaudhary held sec 9 to be “savage and barbarous remedy violating the right of privacy and human dignity guaranteed by Article 21 of the constitution, hence void”.
- Kharak Singh v. State of UP AIR 1963 SC 1295
Justice Subba Rao said, “Any definition of the right to privacy must encompass and protect the personal intimacies of the home, family, marriage, motherhood, procreation and child bearing.
Also Read- All You Need to Know About Divorce in India
What are the Valid Reasonable Excuses?
- When husband remarries
Under the Indian law the concept of Bigamy is prohibited. Section 494, IPC, 1860 and section 17, The Hindu Marriage Act, 1955 criminalises bigamy in India. The Remedy of ROCR cannot be granted to the husband, if he has committed the offence of bigamy. Thus the man loses his right to file a petition for ROCR against such second wife.
Even under the Muslim Law, which allows polygamy to the husband, non-compliance to Sharia i.e. if the husband is unable to maintain his wives equitably, the wife has a reasonable excuse.
- When the conduct of the husband makes it impossible for the wife to live with the husband
In the famous case, Moonshi Buzloor Ruheem v. Shamsonnssa Begum, 1867 RP/MANU 18 it was held that “If there be cruelty to a degree rendering it unsafe for the wife to return to her husband’s dominion, the court will refuse to send back to his house; so also, if there be a gross failure by the husband of the performance of obligation which the marriage contract imposes on him for the benefit of the wife, it affords sufficient ground for refusing him relief in such a suit.”
Section 3 of Hindu Marriage Act, 1955 provides the ground for divorce wherein CRUELTY has been considered to be one such ground. Cruelty is defined as wilful and unjustifiable conduct of such character as to cause danger to limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger.
Not only cruelty, but anything which constitutes a ground for nullity, dissolution of marriage or judicial separation is a defence against a petition of ROCR.
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Also Read – Restitution of Conjugal Rights Free Legal Advice
Let us take note of some of the key aspects under the purview of ROCR
- Right to maintenance of wife
The right to maintenance is conferred upon the spouses. This right is a relief to the spouse who is not financially independent. Section 18 of Hindu Maintenance and Adoption Act, lays down the grounds when maintenance can be granted to the wife. Here the role-play of “reasonable excuse” arises. If the wife deserts her husband without a reasonable cause, the ground for maintenance does not lie and vice-versa.
- ROCR and Judicial Separation
Judicial separation is granted by the court when both the parties are on the verge of breaking their marriage i.e. divorce. The court gives time for introspection to the parties (whether they want to continue the marriage or not), while living separately before they finally choose their independent paths. As per all personal laws, non-compliance with the decree of ROCR does not form a ground to file for Judicial Separation.
Also Read- Divorce Case in Chandigarh Panchkula Mohali
Critical appreciation of Restitution of Conjugal rights
The decree of ROCR is a remedy whose only aim is to protect the institution of marriage. Hindu law is based on the belief that wife is the half of the husband i.e. Ardhangini. The concept of marriage according to Hindu Law is a sacramental tie and therefore the question of Separation does not arise at all. But, in view of the current scenario marriage cannot be considered to be a sport where reaching the end line is important, even if either of the spouse or both of them are putting in their vainest efforts. The constitution of India has granted certain basic Fundamental rights to all its citizens. The basic of these rights is Right to privacy and Right to settle and reside in any part of India. But the remedy of ROCR proves to be a contradiction to these rights. In a marital relationship earlier, the wife residing in a different place than that of the husband, for doing a job, was considered as Desertion. But now, the outlook of the law and the society has changed and women can no longer be confined to the houses. With the concept of Gender Equality, the concept of PIND DAAN and MUKHAGNI by daughter evolved which again falsifies any restriction on the women from withdrawing from the society of the husband. Initially section 9 provided for the remedy, wherein if the women denies having sexual intercourse with her husband, she would be directed to do so. This came to be the violation of Art. 14 and 21 as an unwilling wife to have sexual intercourse with the husband cannot be forced to violate her bodily autonomy. In this regard, the Delhi High Court gave a judgement stating, “The aim of the decree is not to force an unwilling wife to have sexual intercourse with her husband, but to bring about cohabitation between spouses and focuses only on “consortium”.
However the legal faculty of India misses a very important concept here. The concept of “MARITAL RAPE”. Section 375 of IPC considers forced sex in marriages as a crime only when the wife is below the age of 15. Hence, marital rape is not a criminal offence under IPC. Even the Protection of Women from Domestic Violence ACT, 2005 (PWDVA) offers only a civil remedy for the offence.
The catch of this remedy is hereby reflected in the fact that the non-compliance to the decree of ROCR is not punishable. If the respondent fails to do so within one year, it can act as a ground for divorce to the plaintiff.
Also Read- RCR SECTION 9 CASE IN CHANDIGARH PANCHKULA MOHALI
Case Laws:
- Saroj Rani v. Sudarshan Kumar Chadha
Wherein the wife petitioned for ROCR and the husband consented to the decree.
- Bimla Devi D/O Bakhtawar v. Singh Raj S/O Dasondhi Ram 17th December 1976
Husband obtained ROCR on the ground that the wife left the company of the husband without reasonable cause.
Conclusion
The crux of the above discussion says that, the remedy of Restitution of Conjugal Rights preserves the sacramental nature of marriage i.e. a tie of seven births and beyond (as in the Hindu Laws). Section 9 preserves the institution of marriage contrary to the prevalent practices of divorce.
Also Read- SEC 9 RCR CASE CHANDIGARH PANCHKULA MOHALI
Rest for case specific advice, please contact RESTITUTION OF CONJUGAL RIGHTS (RCR)CASE CHANDIGARH PANCHKULA MOHALI Zirakpur Derabassi Advocates Lawyers Matrimonial Expert of Tricity (Punjab Haryana).
This post is written by Rashika Garg.
More on 99888-17966.
Disclaimer – The opinion expressed is of the Author and do not resembles the views of website.
