22 September 2018 01:47PM
Marriage is one of the most important social institutions today. It forms the very basis of social organization. Hindu Shastras and law regard marriage as a sacrament which is eternal. It is considered to be a contract by some as well. Marriage, whether considered to a contract or a sacrament, confers the status of husband and wife on the parties to the marriage, of legitimacy on the children born out of the marriage and gives rise to certain spousal mutual rights and obligation of spouses. This sacramental character of marriage has given rise to certain anomalies. The statement of Manu that "neither by sale nor by desertion is spouse discharged from the husband" was up to this point connected just to ladies and not men. In this manner, there was a component of natural injustice on the wife in Hindu law. After marriage the husband is qualified for the general public of his wife and the other way around. A need for legal action arises when one of the parties to the marriage withdraws from the society of the other. To counter such disparities among life partners and to secure the sacrosanct part of marriage, Hindu Marriage Act, 1955 was ordered which gave certain matrimonial remedies. One such remedy is that of 'Compensation of Conjugal Rights' which is found under section 9 of the Hindu Marriage Act, 1955. The establishment of the privilege is the fundamental rule of the matrimonial law that one spouse is qualified for society and solace consortium-of the other spouse and where either life partner has abandoned or withdrawn from the society of the other without reasonable excuse.
In the same way as other chronologically misguided cures, the compensation of marital rights goes back to the medieval period in England, where marriage was viewed as a property arrangement, and wife was a piece of man's belonging like different assets. A man’s wife was treated no more than a cow. If it ran away from its master’s shed then it could be roped back. It is quite unfortunate that many anachronistic common law actions were abolished in other spheres, but they survived in case of matrimonial law and from there, they were introduced in the laws and practices of the British colonies as well. Restitution of conjugal rights is a remedy which was made accessible to individuals from all networks at an early time of the British rule in India. The remedy was obscure to Hindu law till the British presented it for the sake of social changes. After freedom this remedy discovered place in the Hindu Marriage Act, 1955. In current India, the remedy is accessible to Muslims under general law, to Hindus under section 9 of the Hindu Marriage Act, 1955, to Christians under section 32 of Divorce act, to Parsi's under section 36 of the Parsi Marriage and Divorce Act and to people marrying in the civvil form under section 22, Special Marriage Act.
Section 9 of the Hindu Marriage Act gives that "When either the husband or the wife has, without sensible reason, withdrawn from the general public of the other, the aggrieved may apply, by request of to the District Court, for compensation of marital rights. The court, on being satisfied of the truth of statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”
The court may decree the restitution of conjugal rights if:
· The respondent has withdrawn from the society of the petitioner.
· The withdrawal is without any reasonable cause or excuse.
· The court is satisfied about the truth of the statement made in such petition, and
· There is no legal ground why relief should not be granted.
As a safeguard against hasty separation, section 9 provides an opportunity for reconciliation between the two spouses. Either spouse can initiate proceedings in court for directing the other spouse to give back the conjugal society which has been unreasonably withdrawn.
In India marriage is considered as a very sacred institution. Though marriage comes under personal laws and rules of marriage may be different but all the religions accept marriage as a sacred institution, it considers marriage as a framework which keeps this society well-functioning.
The fundamental ideology behind recognizing the law even after much deliberation is that it “protects the sanctity of the institution of marriage”. This is ironical because a marriage is the celebration of togetherness of two people and when one person is not interested in this fellowship there seems no point in forcing it on them.
ESSENTIALS TO BE FULFILLED
· One party must have withdrawn from the society of another.
· This withdrawal should be without any reasonable excuse.
· The aggrieved party files for a Restitution of conjugal right.
WHAT IS THE PROCEDURE FOLLOWED?
To put it plainly, the bothered party files for a petition in the lower court where the distressed party and his/her spouse dwelled after initiating their marital connection. The judge ater listening to both the sides and on being fulfilled by reality of the statements made in the appeal to decidesand gives a declaration of compensation. If the judgment debtor does not follow the decree then the court can attach and sell the property of the judgment debtor under Order 21 Rule 32.
In the detailed procedure, the following steps are followed:-
· The aggrieved party files a RCR petition in the district court. This petition can be transferred by an application in the High Court or the Supreme Court.
· Copy of the petition is sent to the respondent with a hearing date from the district court.
· The Court requires both parties to be present on the hearing date in front of the Hon’ble judge.
· If both the parties are not available then another date is given.
· After this the court sends the party for court counselling.
· The Court counselling is done mainly by family courts and usually goes for 3 to 4 times. This might take 4 months approximately.
· Based on the counselling and the statements made and keeping in view the conduct of the parties the judge finally grants the decree.
Amid this time the spouse can assert maintenance under Section 25 of Hindu Marriage Act, 1955. In the event that the decree isn't agreed to, at that point the court goes for attachment of property. In the event that the decree isn't followed within one year it can turn into a ground for divorce.
WHEN CAN A DECREE OF RESTITUTION NOT GRANTED?
· A ground for alleviation in any marital reason.
· A marital unfortunate behavior not adding up to a ground of a matrimonial cause, if adequately profound and grave
· Such an act, omission or conduct which makes it impossible for the petitioner to live with the respondent.
EFFECTS OF NON –PERFORMANCE OF DECREE
In the event that a decree of RCR is passed by the Court, and the party adamantly defies the decree then the decree holder can record an application for execution of decree under Order 21 Rule 32 of Civil Procedure Code, 1908. The rule says that where the party against whom an decree for compensation of matrimonial rights, has been passed, and has had a chance of complying with the decree and has unshakably neglected to obey it the decree might be authorized by connection of his property..
In T. SareethavsVenkataSubbaiah, the Andhra Pradesh High Court has observed that the remedy of restitution of conjugal rights is a violation of the right to privacy and human dignity guaranteed by article 21 of the Constitution. According to the judgment, a woman is denied a free choice regarding her own body and whether it was to become a machine for the procreation of another human being. A decree of restitution of conjugal rights deprived a woman of her control to make her most intimate decisions. It was arbitrary and void as offending article 14 of the Constitution as well.
However in Smt. Harvinder Kaur vsHarmander Singh, the Delhi High Court observed that Section 9 of the Hindu Marriage Act is not violative of articles 14 and 21 of the Constitution.
The Supreme Court has now settled the law with regard to the constitutionality of section 9 of the Act. In Saroj Rani versus Sudarshan Kumar the Supreme Court saw that section 9 of this demonstration can't be said as violative of articles 14 and 21 of the Constitution if the motivation behind the decree of restitution of marital rights is comprehended in its appropriate point of view and if the strategy for its execution in instances of rebellion is kept in view.
INSINCERITY OF THE PETITIONER IN RESTITUTION CASES
The most major issue with the remedy is the untrustworthiness of the petitioner. The remedy is conspicuously abused to accomplish ulterior purposes other than compromise. The root cause of this problem lies in Section 13 (1A) (ii) of Hindu Marriage Act, 1955. This section says that if a compensation decree has not been agreed to for a time of one year the parties can petition for divorce. The general pattern in restitution claims is that the "aggrieved party" records a restitution appeal, at that point does not energetically agree to the declaration and after the statutory time of one year, documents for divorce under S. 13 (1A)(ii) on the ground of non-compliance with the declaration. There is a string of cases to this point. In fact, Justice Rotagi in Harvinder Kaur v Harminder Singh recognised that “the legislature has created restitution of conjugal rights as an additional ground for divorce”.
However another real issue with restitution petitions is that it is utilized as a defense for maintenance suits. In England where until 1949, a married lady's claim to maintenance could be managed just in the event that she has effectively connected for some other marital relief. Relatively every compensation petition made by the wife was to set up the ground for claim of maintenance. This was aptly proved by the fact that when the law was changed and maintenance could be claimed without any previous claim to some other relief, the quantity of wives' restitution petitions fell by more than sixty-three percent within two or three years. The circumstance is the same in India.
WORKING WOMEN AND RESTITUTION OF CONJUGAL RIGHTS
It has been held in various cases that a wife is not obligated to live with her husband under one roof if she is gainfully employed in a place away from her husband’s residence. The Court holds it to be a reasonable excuse to live apart in such a case and the husband’s restitution petition is not granted.
In AlkaBhaskervsSatchidanandaBarke the Bombay High Court further held that the matrimonial home is not necessarily the house of the husband or the house of his parents. In this case both the husband and wife were gainfully employed at different places and decide to book ownership of a flat at Bombay. The husband contributed initial amount and the wife paid the remaining balance. It was held that this flat at Bombay was the matrimonial home of the parties.
CRUELTY AS A GROUND FOR WITHDRAWAL OF SOCIETY
The Court is not barred from considering cruelty as a valid reason for withdrawal of society. Cruelty shown by husband’s parents over various grounds including dowry as well, emotional and physical torture by the spouse, verbal abuse and even raising questions over wife’s chastity are categorized under cruelty and are valid reasons for withdrawal of society.
In Smt. Sumanbai versus AnandraoOnkarPanpatil the court held that there can be not any more offending damage to the wife than her own husband scrutinizing her virtuousness. If such allegations are lightly made and persisted in filing the petition, the husband is not entitled to any relief under section 9 of the act.
IMPORTANCE OF BURDEN OF PROOF
It appears to be an established law now that once the petitioner has proved that the respondent has withdrawn from society of the petitioner, the burden of proof that the withdrawal is for a reasonable cause lies on the respondent.
1. Sareetha v. VenkataSubbaiah(1983)
The case was decided by the Andhra Pradesh High Court which observed that Section 9 of the said Act was a savage and barbarous remedy violating the right to privacy and human dignity and equality guaranteed by Article 14 & 21 of the Constitution. Hence, Sec 9 was declared to be constitutionally void for abridging rights guaranteed under Part III of the Constitution. As indicated by the learned Judge, a decree for compensation of marital rights denied of her decision as and when and by whom the different parts of her body should be allowed to be sensed. The court relied on the Scarman Commission’s Report in England that recommended its abolition.
2. Harvinder Kaur v. Harmander Singh 1983
It was held that sec 9 was not violative of Articles 14 and 21 of the Constitution since the main thought behind Sec 9 was to save the marriage. The remedy of restitution was aimed at cohabitation and consortium and not merely at sexual intercourse
3. Saroj Rani v. Sudarshan Kumar
The above contradictions about the constitutional validity of Sec 9 were set at rest by the Apex Court in this case. The case primarily raised 3 issues:
· Determination of spouse privilege to separate from when appealing to of compensation of matrimonial rights was documented by the wife. – Since a spouse isn't banished by Sec 23(a) from guaranteeing help under Sec 13(1A), the decree was passed.
· Constitutionality of remedy of restitution of matrimonial rights gave under Sec 9 of the Act. – It was held that Sec 9 isn't violative of Article14 and 21 of Constitution.
· Determination of maintenance – Separate maintenance was ordered for the wife and the daughter.
4. VuyyuruPothuraju v. Radha 1965
In the instant case, there was a pre- nuptial agreement between the husband and wife that after marriage, the husband would live with wife at her foster- father’s house. Subsequently, he was ill-treated there and returned to his village and requested his wife to come over to him. On her refusal, he started a suit of restitution of marital rights. The Court held that pre-marital aggrement was unenforceable and thusly permitted the petition. As a general principle, any agreement, be it under Hindu law or Muslim law, between husbands wife to live separately, is considered to be void for being contrary to public policy.
5. Mirchumal v. Devi Bai
This case primarily deals with the effect of husband and wife serving in different places. In this case, the husband was in service near Ajmer and the wife worked in Adipur. On the wife's refusal to leave her place of employment, the husband moved the petition for restitution of matrimonial rights. The court held that if there is no refusal with respect to the wife to enable access to her husband and no hesitance on her part in heading off to her significant other, at that point the negligible refusal on her part to leave her activity is adequate ground for the husband to look for help for restitution of marital rights. Subsequently the appeal was to be dismissed.
Despite the fact that the idea of compensation of marital rights has been tremendously condemned, regardless it has not been replaced. Many jurists are of the opinion that reconciliation is a better method for addressing matrimonial disputes than restitution. Be that as it may, compensation of marital rights still wins under section 9 of the Hindu Marriage Act, 1955 in the present day.
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