Introduction: Restitution of Conjugal Rights (RCR)
Meaning of section 9 of Restitution of Conjugal Rights – The provision of RCR available under section 9 of The Hindu law. If either husband or wife without reasonable reasons withdraws from the society of the others. In that case, the aggrieved person may apply to the court for the direction of restitution of conjugal rights. Here we will discuss The Restitution of Conjugal Rights and Related Case Laws.
However, the decree of Restitution of Conjugal Rights can be executed by the attachment of properties of the judgement debtor. The Petition of Restitution of Conjugal Right filed by the husband or wife. The Provision Restitution of Conjugal Rights is available in Muslim law also. Restitution of Conjugal Rights and Judicial Separation both are different things.
Who can file Restitution of Conjugal Rights?
Husband and wife both can file a petition of RCR under section 9 of the Hindu Marriage Act. After filing the petition, the respondent has to submit a written statement for the petition of Restitution of Conjugal Rights.
Grounds of Hindu husband for of claim Restitution of Conjugal Rights:
- One party has to withdraw from the society of others
- The withdrawal must be without any reasonable reason.
- The aggrieved party need to present a petition for restitution of conjugal rights.
The burden to prove section 9 of the Hindu Marriage Act (Restitution of Conjugal Rights and Related Case Laws)
The aggrieved party has the burden to prove that the respondent has left him/her. And when the aggrieved party successfully proved that, in that case, onus shift on the respondent to prove that there are reasonable grounds to support as to why the respondent moved away from the aggrieved party’s society.
Where to file Petition for RCR (Restitution of Conjugal Rights and Related Case Laws)
- The place where the marriage was performed.
- The place where husband and wife stay together.
- Lastly, the place where husband and wife last stayed together.
Can wife claim maintenance in the RCR petition?
Yes, a wife can claim maintenance under section 25 of the Hindu Marriage Act in the RCR petition. However, if the Restitution of Conjugal Rights is not executed or no cohabitation for more than one year, in that case, it becomes a ground for divorce.
What are effects of a decree for conjugal rights passed by a court?
If either of the party has not executed the decree of Restitution of Conjugal Rights or there is no cohabitation for more than one year, in that case, it becomes a ground for divorce.
Restitution of conjugal rights cases:
Here we will discuss the Supreme Court case Smt Saroj Rani Vs Sudarshan Kumar Chadha on the issue of RCR.
Facts in brief:
- The wife- appellant filed suit under section 9 of the Hindu Marriage Act for restitution of conjugal rights against husband- respondent. However, the husband opposed the petition. He contended that he had neither forced the wife-appellant out from his house nor withdrawn from her society. The application for restitution of conjugal rights was allowed by the court. And consent decree was passed for the restitution of conjugal rights.
- Respondent husband filed a petition for Divorce after completion of a year under section13 of Hindu Marriage Act against the appellant-wife. And contended that one year has elapsed after passing of a decree for restitution of conjugal rights and no cohabitation has taken place between them. The appellant-wife filed reply in that petition and she contended that the parents of the husband had taken to her in the house after one month. The respondent-husband kept her in the house and then she again turned out from the house of the husband.
- However, the District Judge after going through the evidence opined that there has no resumption of cohabitation between the parties. And as per the provision of section 23 and in view of the previous decree was a consent decree and there was no provision of section 13 B (mutual divorce) at the time of passing said decree. Hence it has held that decree for restitution of parties has passed by the consent of parties, hence husband has not entitled for the Decree of Divorce.
Respondent husband filed an appeal in High Court against the order of District Judge.
- High Court Judge followed the decision of the Supreme Court held in Dharmendra Kumar Vs Usha Kumari and referred the matter before division bench for consideration of the question. Division court followed Joginder Singh Vs Smt. Pushpa. And it was held that the husband has not disentitled to get a divorce. High Court allowed the appeal and granted the decree of divorce to the Husband.
- Wife preferred appeal before the Supreme Court challenging the order of the High Court. And contended that as per the expression ‘wrong’ mentioned in section 23(1) of the Hindu Marriage Act, the husband disentitled to get a divorce and section 9 of the HM Act is arbitrary and void and it has offending article 14 of the constitution of India.
- Supreme Court held that Conjugal rights are the rights of the husband and wife to society. And such rights are inherent in the institution of marriage. And there is sufficient safeguard provided in section 9 of the HM Act. Even after the final decree of divorce husband would endure paying maintenance to the wife until she remarries and daughter until she marries.
- The wife did not challenge the consent decree as it has not bad or conniving. It was argued that since beginning the husband wanted the decree of divorce. Hence, he deliberately did not oppose the decree of restitution of conjugal rights.
- The Respondent husband had the intention of ultimately divorce allowed the wife a decree of restitution of conjugal rights. Husband fully knowing that the decree he would not honour and thereby he mislead wife and court. And thereafter refused to cohabit with the wife. The husband can not allow to take advantage of his wrong.
- Appellant relying on the case-law of Sareetha Vs Venkata Subbaiah, which has overruled by the Supreme Court.
Respondent contended that the RCR is constitutional. And relying on the Harvinder Kaur Vs Harmander Singh Choudhary and which has approved by the Court.
The opinion of the court
- Court directs that even after the final decree of divorce the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage.
- Separate maintenance should be paid for the wife and the daughter.
- Parties shall be at liberty to ask for a variation of the amount by proper application on proper materials made before the court.
- The appeal dismissed.
List of cases referred
Dharmendra Kumar Vs Usha Kumar
In this case, it has held that it could not say that husband has taken advantage of his wrong, but expressed the opinion that the decree of RCR could not pass with the consent of the parties. And therefore dishonest husband disentitled to a decree for divorce.
Geeta Laxmi Vs. G. V. R. K. Sarveswara Rao
In this case, Andhra Pradesh High Court held that there on admitted misbehaviour of the husband is not only in not complying with the decree of restitution of conjugal rights but ill-treatment the wife and finally driving her away from the house. And it has held that the husband has not entitled to a decree of divorce in view of the wrong as contemplated under section 23 (1) (a) of the Act.
T. Sareetha Vs. Venkata Subba (overruled)
In this Jugegement court has observed that the remedy of RCR provided under section 9 of the HM Act has a cruel and barbarous. However, the RCR violating the right of privacy and human decency secured by Article 21 of the constitution. And according to a single judge, RCR was constitutionally void. Learned Judge observed that a decree for restitution of conjugal rights has the grossest form of violation of any personal right to privacy.
In the case of Smt. Harvinder Kaur Vs. Harmander Singh Choudhry, the learned judge of the Delhi High Court expressed the opinion that section 9 of the said Act has not violative of Articles 14 and 21 of the Constitution. The object of Restitution of Conjugal Rights decree has to bring about cohabitation between parties so that they may live together in the matrimonial home in peace. The object of RCR has to preserve the marriage.
The aim of section 9 is to bring cohabitation and consortium and not merely at sexual intercourse. The learned judge opinioned that the restitution decree did not enforce sexual intercourse. Therefore, it was a fallacy to hold that the restitution of conjugal rights constituted “the starkest form of governmental invasion” of “marital privacy”.
Conclusion (Restitution of Conjugal Rights and Related Case Laws)
Therefore, it can not be said that the remedy of Restitution of Conjugal Right is unconstitutional. However, RCR has to safeguard to stop the breaking of marriage. And it has to serve a social good purpose by promoting reconciliation between the parties.