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    What is Restitution of Conjugal Rights?

    Marriage gives many rights to husband and wife over each other. One of such right is the right to have sexual intercourse with each other. Apart from that being a part of each other’s societies is also a right. In legal language these rights are called Conjugal rights in Marriage.

    Now, according to Section 9 of Hindu Marriage Act, 1955, when either the husband or wife withdraws from society of other spouse without any reasonable excuse and then refuses to cohabitate, the aggrieved party can go to District Court with petition for Restitution of Conjugal Rights.

    Who has the burden of proof in Restitution of Conjugal Rights Cases?

    In such cases the court will try to find out if there is any legal ground to stay separate. If there is no such legal ground then the court will grant the decree of  Restitution of Conjugal Rights in favour of the aggrieved party. The burden of proof here will be on the spouse who has withdrawn from society of another.

    How RCR is a law against Right to Personal Liberty?

    Restitution of Conjugal Rights (RCR) is one of the most debated laws. This provision has been questioned and challenged for its constitutional validity in courts many times in various cases as it  is in direct contradiction with Article 14 and 21 of Constitution of India which guarantees Right to personal liberty. In the case of  T. Sareetha v. T. Venkatasubbaiah this issue was debated and discussed. In this case the court said that there must be control on choice of women as and when and by whom the various parts of her body should be served. Court also said that this law is the grossest form of violation of any individual’s right to privacy.

    Purpose of Restitution of Conjugal Rights Cases In India

    Actually, the purpose of Restitution of Conjugal Rights in India lies in our ages old perception of marriage being a sacrament and a very essential entity for the whole social structure.

    Matrimonial laws are also developed in a way that they maintain this much deep-rooted system and explore all the possibilities of bringing husband and wife together.

    Now in present day scenario, it is beyond understanding to force you to go back in marriage by the course of law if you don’t want to stay in marriage. So the court has to find out if the grounds for such withdrawal are reasonable or not.

    When can you obtain Restitution of Conjugal Rights?

    There are various grounds to obtain decree of Restitution of Conjugal Rights:

    • Improper behaviour which is not proved: The court will grant RCR in favour of aggrieved party if the spouse, who has withdrawn, complains of improper behaviour by the other party. Such improper behaviour doesn’t forms the act of adultery and there is no proof of it.
    • Temperament issues not of serious nature: If it is a case of being simply temperamental and moody, which doesn’t have serious consequences. Like shouting at kids playing in street or getting irritated something specific.
    • Intolerance issues: If there is a habit of intemperance and intolerance which results into prolonged or hysterical outburst. But otherwise there is no problem in regular course of life.
    • Unpleasant relations with step children: The inability of one spouse to get along with step children doesn’t make a reasonable ground for another to separate.
    • Pre-marital affair: If there was some pre-marital affair of the  spouse and another spouse discovers it after marriage. The law doesn’t find it enough reason to separate and can grant RCR to the aggrieved party.
    • Development of Insanity: If one spouse has developed some serious mental illness after marriage, but there is no fear of violence to the other spouse, decree of restitution of conjugal rights can be granted.

    So, in case the spouse who has withdrawn from the society of other gives any of the above reasons in court, court may still grant the decree of restitution of conjugal rights.

    When decree of Restitution of Conjugal Rights cannot be granted to you?

    There are certain grounds which make it difficult for you to get a decree of restitution of conjugal rights and on the basis of which the spouse’ decision to live separately is justified.

    These grounds are obviously more serious in nature and if court finds them to be true, the decree of RCR will not be granted. Such grounds depending upon various case laws are as follows:

    • Cruelty: If there is consistent indecent behaviour like cruelty and adultery by any of the spouse. Cruelty can be both physical and mental. Using abusive, filthy and ugly language  also comes under cruelty.
    • Irresponsible behaviour towards the resources at home and improper expenditure which results into financial loss.
    • If the spouse is a drunkard and due to the excessive drinking the environment of family becomes negative and stressful.
    • If the husband keeps on charging his wife for flesh-trading and mentally harass her.
    • If there are false charges of unnatural offences.
    • Ill treatment of wife by her husband and parent-in-laws also amounts to cruelty. (Pramila Bala Barik v. Ravindra Nath Barik)
    • If there is refusal of marital intercourse without any sufficient cause.
    • If there is development of insanity and apprehension of violence by petitioner due to that insanity.
    • If there is agreement to live separately.
    • If there is imputation of unchastity by husband on wife, which means charging the wife of having extramarital sexual intercourse or doubting her purity.

    What is impact of non-serving of the decree of Restitution of Conjugal Rights?

    If someone wilfully fails to obey the decree of restitution of conjugal rights, he/she may invite further liabilities. The decree may be served by:

    • Attachment of property
    • Detention (custody) in civil prison
    • Or both
    • It can also be a firm ground for getting the Decree of Divorce.

    Conclusion: Law of course cannot bind two people together where the bond is dead and irretrievably broken but if the court sees any kind of possibility of reconciliation and cohabitation, decree of Restitution of Conjugal Rights can certainly be a way. If you want to know more about it please call 9828065532 or write a mail on contactus@lexcarts.com. We will be happy to find solutions for you.

    Explaination:

    1. Sacrament- A religious ceremony or an act which is regarded as spiritual divine grace.
    2. Irretrievably- In a way that cannot be put right or back to the previous condition.
    3. Reconciliation- The restoration of friendly relations.
    4. Cohabitation- Living together as husband and wife.

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    Author: Aparna Praveen Kumar

    Aparna is a chief legal advisor at Lexcarts Technologies. She has experience of interviewing senior high court judges and legal personalities. Her articles got published in Hindustan Times and other leading national dailies. At Lexcarts, she furnishes advice on all legal issues and is fully devoted to legal ethics.

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