Unconstitutional and Unethical Matrimonial Remedy – Restitution Of Conjugal Rights

Marriage is the most significant and holy association in our society. In general, marriage can be portrayed as a bond/responsibility between a man and a lady. As it is observed the experience of marriage can be fruitful or unsuccessful. And at times in a marriage, one accomplice decides to step out of their relationship, and another accomplice attempt to spare their marriage take recourse to matrimonial remedies. Restitution Of Conjugal Rights.

Under section (9) of Hindu Marriage Act “Restitution of conjugal rights” legally means If without a fair cause, either the husband or the wife is separated from the other company, the party concerned can, by appeal to the district court, request the reconciliation of marital rights and the court to be satisfied with the validity of the claims contained in the petition and that there is no valid reason why the order should not be granted, can decree the restitution of the marriage.

Restitution’s literal meaning is the restoration of something lost, and marriage rights mean marriage or husband-wife relationship rights. This is often considered a marital solution to regain conjugal rights, but at the same time, it has met with some objections.

The issue that emerges is about the legitimacy of this specific provision that whether marital rights restitution defies Article 14 and Article 21 of the Indian Constitution? And is the restitution of Conjugal Rights to society just, fair and rational?

The legislation dealing with this remedy under different personal laws are as following

s.9 of the Hindu Marriage Act, 1955, for Muslims under the general law, Ss. 32 and 33 of the Indian Divorce Act, 1860.S. 36 of the Parsi Marriage & Divorce Acts. 22 of the Special Marriage Act, 1954 in case of inter-caste marriages.

Basis of Granting the Remedy

The court will normally order that conjugal rights be restituted. When the petitioner demonstrates that the respondent’s spouse has withdrawn from his / her business without fair justification, the claims made in the application of the grieved spouse are genuine and there is no legitimate reason why the petitioner should not be granted the remedy.

The concept of a ‘reasonable excuse‘ is the defence of this principle. Unless the respondent has withdrawn from his spouse’s society for a legitimate cause, a restitution claim is a full defence[1].

In Bai Jivi’s case court observed that the said remedy is a remnant of ancient times when slavery or quasi-slavery was treated as ordinary. This is especially so after the Constitution of India came into force, which guarantees personal liberty and equality of rights and opportunity to men and women alike and further confers powers on the State to make special arrangements for their protection and safeguard. Whatever may be the ancient law, it is now, difficult to appreciate this compulsion on an Indian wife when she has a reasonable apprehension that her life with her husband is impossible or dangerous to her. The Courts must be slow and cautious in these matters[2].

This provision came after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.” However, the said law also often throws spouse especially to the female partner at the risk of abuse, domestic violence, and neglect at home.

Constitutional Validity of Restitution of Conjugal Rights

The problem was brought before the Delhi High Court and the Supreme Court of India, which claimed that the goal was to establish “coexistence” among partners and hence absorbed solely on “consortium.” That may not have been understood by the Supreme Court and the Delhi High Court, however, is that forced sexual intercourse (marital rape)   is still legal in India and husband may compel the wife to have sex without her approval, as no legal action can be taken against him.

The Real Me Is Lost?

The question of Section 9’s constitutional validity was first raised in T Sareeta v Venkatasubbiah[3], in which The Andhra Pradesh High Court found Section 9 of the Hindu Marriage Act to be a constitutional violation, and the provision challenged was ruled illegal.

In Harvinder Kaur’s[4] case, honourable Court seems to indicate that the restoration of the conjugal rights order has only a mere intent, that is, to compel the reluctant wife into sexual activity with her man.

The case then eventually came before the SC in Saroj Rani v Sudarshan Kumar Chadha[5] where the Supreme Court overruled T Sareeta. Within the legal sector as ruled by the Supreme Court, the judgment was held in full support of Section 9 of the 1955 Hindu Marriage Act and, most of all, the principle of restoration of marital rights in the Indian legal system is valid.

The hon’ble supreme court on the question of the remedy being in breach of Article 14 of the Constitution said both husband and wife have access to a remedy for the restitution of the rights of the Conjugal. Even though contemplating the solution from a socio-legal viewpoint, one can not disregard the fundamental disparities between a man and a woman. The Remedy for the Restitution of Conjugal Rights violates an individual’s nature by choosing with whom to live. In Indian society, husband and wife aren’t always equal and in our extremely patriarchal country, the wife is most economically and socially dependent on the husband. 

About the violation of Article 21 of the Constitution, the Court noted that ‘cohabitation’ is the sole target of the recourse and does not mandate sexual intimacy between the unwilling partner. But we live in a country where divorce is still considered a social taboo, marital rape remains legal, domestic violence is so prominent.  So for  Matter of fact, the decree effectively places a woman with her husband under the burden of intercourse and thus strips her of physical independence, integrity, and the basic freedom to make her own choices about her own life and body.

Analysis why Restitution of marriage rights must be scrapped

1. The underhanded motive of petitioner– The main purpose of restitution rights is to reconcile husband and wife to preserve their marriage if one partner does not want to be in the relationship but sometimes when filling for such decree individuals have ulterior motives for example if the husband gets a decree from the court for restitution sometimes it can lead to marital rape or domestic violence against the wife.

2. Violates Fundamental Rights Restitution of conjugal rights compels individuals to remain together against their own will that deprives them of their liberty, to make their own choices that breach the fundamental rights of such persons.

3.Sexual Harassment– This remedy forces a woman to stay into a marriage without her will which can sometimes lead to sexual harassment or making physical relations by her husband without her consent.

4.Meddling by the court– Institution of marriage is a very important and a private union of the society. Interference by the court in one’s private life and forcing him/her to live into the union they don’t want to be a part of 1. It violates the privacy rights and also encroaches the right of a person to choose their partner in accordance with Part iii of the constitution.

5. Against the Privacy Right– The remedy is against the right to privacy, autonomy, and dignity of and induvial as the right of privacy and contravene the State’s legitimate purpose in the light of a recent decision by the Supreme Court clarifying the essence of the right to privacy.

In Govind Kumar v State of Madhya Pradesh[6], the Court established that right to privacy is a fundamental right, it was included in the liberty clause. The court observed that “any right to privacy must compass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation, and child-rearing[7].”

India borrowed the remedy from England’s to regain conjugal rights in British rule, but a fair while ago in England, the remedy was abolished, Yet India is enforcing a statute that is unnecessary and outdated for the present. Pre-constitutional laws should be viewed with scepticism, as Justice Nariman has observed. The base, however, has to be constitutional. In the light of current scenarios, laws should be viewed as time, and social change and grow. Some Victorian laws are outdated and have lost their ground. In Navtej Singh Johar v. Union of India[8] SC also decriminalized a Victorian law on homosexuality.


Restitution of Conjugal Rights is based on a worthy purpose but with the current dynamics and social structures, it has lost its merit and just hasn’t had the necessary effect. Section 13 of the Hindu Marriage Act also mentions that if a restitution decree is not followed, it can be treated like a divorce ground that in effect fails the ultimate purpose of section 9 because its object is to prohibit divorce.

The object of the restoration is to promote a reunited wedding but we still live in a masculine country and pushing a wife to stay in partnership with her husband may violate her right to choose whether or not to have a sexual relationship with her husband as the husband will have sexual intercourse even without her consent since he will not face any legal consequences.

Restoring marriage rights has opted to leave sufficient confusion as to whether it violates Articles 14 and 21 or not. During a time when individuals are becoming more mindful of individual privacy and personal life, and attach importance to human rights. Provisions like this could mess with their issues, as marriage is viewed as a very intimate concept in our country. It can also be argued that these regulations do not carry more weight with current dynamics, and do more harm than good.


  1. Gurdev Kaur vs Sarwan Singh, [1959] A.I. R P H 162
  2. AIR 1927 Bom 264
  3. [1963] AP 356
  4. [1984] A.I.R Del 66
  5. [1984] A.I.R SC 1652
  6. [1975] A.I.R. SCR (3) 946
  7. Ibid at 7
  8. [2016] WP Crl 76

BY- Prakhya Shah | United World School Of Law Karnavati University, Gandhinagar, Gujarat.

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