RESTITUTION OF CONJUGAL RIGHTS: A CRITICAL ANALYSIS
Author: Ayush Garg, I year of LL.M. from Christ University, Delhi NCR
Marriage is a one-of-a-kind institution in modern culture. It is the fundamental: foundation of all civilised society, yet its specific definition is ill-defined and ambiguous. Change is a well-established legal principle. The traditional ideas and conceptions of marriage have changed throughout time as society has progressed. Additionally, a large number of marriage legislation were established to regulate the dynamics of marriage. There are a variety of marital remedies available to help disgruntled couples, including divorce and judicial separation, among others. Restoration of Conjugal Rights, for example, is a provision that has been included in several different personal laws. The goal of matrimonial remedies, on the other hand, is not to make marriages less stable or to make them less durable. The marital links are only dissolved by a divorce judgement when the parties are unable to continue their relationship together.
The 'Restitution of Conjugal Rights' remedy is intended to bring divorced spouses back together. If one spouse withdraws from the marital society without providing a valid reason or justification, there is a remedy accessible to them. It was adopted from English law during the period of British administration and applies to both spouses under their laws. There are substantial doubts regarding the remedy's efficacy and how it should be administered. Conjugal subjects are considered to be very delicate. When the state intervenes in such intimate ties, it is seen negatively.
DEFINITION OF MARRIAGE
It is impossible to describe precisely what defines a family, the fundamental unit of society since its nature differs according to the community. However, some sociologists and jurists have attempted to define it for themselves.
PROF. Vinogradoff observed that:
“ it is not only an institution regulating sexual intercourse and kept by conjugal affection but also an arrangement for bringing up of children and a partnership for economic ends and social cooperation sometimes one side and sometimes another predominates”. 
Robert H. Lowie observed that
“marriage denoted those unequal– cally sanctioned unions, which persisted beyond sexual satisfaction, It this, came to underlie family life since sexual satisfaction could often be amply gratified outside wedlock”.
According to Ajay K, vashveshas
“Marriage is an institution which been in vogue since time immemorial and it is almost uniformly regarded as a sine-qua-non for upgrading and cherishing moral and ethical values in the society and to discipline the man who is distinguished from the animal because of his rational sense which is wanting in an animal”.
As is the case with the nature of marriage, the definition of marriage differs according to individual state laws and religious views.
If we adopt the above definition, the following are the necessary components of marriage:
A. It must be a voluntary relationship
B. It must be permanent.
C. The union is required to be heterosexual.
D. The relationship must be monogamous.
This term may be appropriate when the marriage was held to be both indissoluble and sacred by English Law, as it was in the case described above.However, after a divorce has been officially acknowledged, the relationship doesn't need to continue indefinitely.It may be dissolved at any point throughout the lives of the spouses for defined specific reasons or in the case of the dissolution of the marriage.
Although there are several definitions of marriage, the most frequently recognised and simplest are as follows: "Marriage is the union of two people who are legally married."Rights and responsibilities emanate from this major social institution as a consequence of the union's legal registration.Fundamental in nature, some rights and responsibilities of a married spouse are essential to the pair's marital joy and fulfilment.
NEED FOR RESTITUTION OF CONJUGAL RIGHT
Whether or not the restoration of marital rights is necessary has been a cause of heated dispute year after year.Some people consider it to be a poor release, while others consider it to be a good release.This, in our opinion, is both a bad and positive relief since it is used to protect marriages, which are considered more holy than any other contract or legal document in countries such as India,.As a result, marriage is seen as an immortal union that is indestructible and irrevocable, established in heaven and incapable of being broken by human hands.It is seen as a technique of bringing people who have been estranged from their partner's culture back to their senses and reuniting them with their families so that they may fulfil their marital obligations.The need for ROCR is evident until new laws are passed that will more effectively and favourably preserve the marriages of individual couples.
It is vital to recognise the importance of Conjugal Rights Restitution from a moral position as well as from a legal one.Even though this appears to be a violation of certain rights guaranteed by the Indian Constitution, such as Article 19(1) (c), which guarantees freedom of association; Article 19(1) (g), which guarantees the right to reside and settle in any part of India; and Article 19(1) (g), which guarantees the right to practise one's profession, on the contrary, as we have seen above, marriage is a vital part of human life and it is critical to preserve it rather than being overly concerned with its preservation.
REMEDY UNDER THE HINDU MARRIAGE ACT
Section 9 of the Hindu marriage act, originally incorporated the provision for the remedy as under:
1. An aggrieved party can petition the District Court for Restitution of Conjugal Rights if either the husband or wife withdraws from the other's society without reasonable cause. If the court is satisfied that the petition's allegations are true and that there is no legal reason why the application should not be granted, the court may decree Restitution of Conjugal Rights.
2. A restitution petition must not include any claims that might provide grounds for legal separation, nullity of marriage, or divorce in the event of a successful defence.
An appeal was filed by the wife against a reparation order issued against her by the District Court in response to the respondent's petition. Surdev Kaur v. Sarwan Singh was a civil case.The lady had been beaten and had been subjected to extreme cruelty.She was even detained without a warrant.In response, her mother secured a search warrant from the court, and when she went before the judge, she said that her husband had been mistreating her, forcing her to have sexual relations with his brother, and enabling other persons to criticise her for wrongdoing on her behalf.Following that, the magistrate granted her permission to accompany her mother to the hospital.As a result, the husband filed a claim for monetary compensation.An examination of the remedy's historical background, English practice, and previously decided decisions on the matter led to this conclusion.Nothing that is spoken in response to a restitution petition may be used to legitimise a judicial separation, nullity of marriage, or divorce in any way.
A.N GROVER J; laid downs
“Although subsection (2) of section 9 of the Hindu marriage act confines please in defence only to those grounds which can be taken under sections 10, 12 and 13 of the Act, Sub-section (1) itself lays down certain conditions which must be fulfilled before the decree can be granted.”
ESSENTIAL REQUIREMENTS TO SEEK RESTITUTION OF CONJUGAL RIGHTS
If we examine Section 9, the following elements must be met to seek judicial relief.
A. The respondent's withdrawal from the petitioner's society.
B. The withdrawal is without justification.
C. The court should be pleased with the truthfulness of the petition's assertions.
D. There should be no other legal basis for denying relief.
E. The District Court will hear the petition.
F. The spouse who has withdrawn from the other's company is responsible for proving a reasonable reason for doing so.
CONSTITUTIONAL VALIDITY OF SECTION 9
Earlier this year, in “T. Sareetha v. T„ Venkata Subbaiah,” the Andhra Pradesh High Court heard a case challenging the constitutional validity of Section 9.As a result of the ruling, "the restitution of conjugal rights provided for in that Section is an unconscionably cruel and barbarous remedy that violates the right to privacy and human dignity guaranteed by Article 21 of the Constitution," as well as being "arbitrary and void as a result of violating Article.14 of the Constitution."
In Sareetha's case, the Supreme Court upheld the stance of Avad Behari Rohatgi J. and rejected the position of P.A. Choudhary J. in the lower court.The Supreme Court, in the case of “Saroj Rani v. Sudarshan Kumar”, upheld the constitutional validity of Section 9 of the Act in its entirety.
It is a solution aimed at preserving a marriage rather than destroying it, as divorce or legal separation are intended to do.The court has no authority to order the defaulting spouse to physically return to the comfort-consortium of the decree-holder spouse.
In this time of transformative constitutionalism, provisions that are in opposition to reformative societal norms are ruled to be unconstitutional.Constitutional morality therefore prevails over social morality in this situation.The Restitution of Conjugal Rights provision should be repealed at this point in time.The Restitution of conjugal rights is based on the common law of England.In addition to violating Articles 14 and 21, this approach is out of touch with current events.Furthermore, such a remedy is in direct conflict with the judiciary's earlier decisions on human dignity, individual liberty, and the right to remain anonymous.Therefore, such legal remedies, in my opinion, have no place in our legal system of justice.
Vinogradoff, Historical Jurisprudene f Vol „ I, p„ 169 Encyclopedia of Social Science, Vols. IX and X at pp. .146-155. Ajay K. Vashvesha, "Restitution of conjugal Rights under Muslim Law- A Critical Appraisal" in Indian Bar Review, Vo: 14(3) (1987), p. 382. AIR, 1959, Punjab., 162. AIR 1983 AP p. 356 AIR 1984 SC, p. 1562.