Laws related to restitution of conjugal rights
Under Section 9 of the Hindu Marriage Act, 1955, if either spouse deserts the other without reasonable cause or refuses to cohabit with the other spouse, the aggrieved party may file a petition before the court seeking restitution of conjugal rights. The court may then pass a decree directing the respondent to resume cohabitation with the petitioner.
However, it is important to note that the court cannot force the respondent to resume cohabitation with the petitioner. The court can only pass a decree for restitution of conjugal rights, which is essentially a direction to the respondent to resume cohabitation with the petitioner. If the respondent still refuses to resume cohabitation, the petitioner may seek other legal remedies such as divorce.
Court’s role in restitution of conjugal rights
The court will only pass a decree for restitution of conjugal rights if it is satisfied that the petitioner is not at fault and that there is no other reasonable cause for the respondent’s refusal to cohabit. If the court finds that the petitioner is at fault or that there is a reasonable cause for the respondent’s refusal to cohabit, it may dismiss the petition.
Under no law can the court compel or force a husband to take back his wife. No court can force co-habitation between a couple. If in the mediation proceedings it is even suggested to the husband to take back his wife he can refuse.
Other legal remedies
If the respondent still refuses to resume cohabitation after the decree for restitution of conjugal rights, the petitioner may file for divorce on grounds of cruelty or desertion. The petitioner may also seek maintenance from the respondent under Section 125 of the Criminal Procedure Code.
However, the court does not have the power to force the respondent to stay with the petitioner against their will. The remedies of restitution decree, divorce and maintenance serve to provide relief to the aggrieved spouse but cannot compel an unwilling party to continue the marital relationship.
In the Indian social context, there is often immense familial and societal pressure on a woman to continue staying in an unhappy or abusive marriage. However, the law does not force an unwilling party to remain in a marriage against their consent. While filing for divorce may not be socially acceptable in some communities, legally a woman cannot be forced to stay in a marriage if the conjugal relationship has irretrievably broken down.
Criticism of restitution decree
The remedy of restitution of conjugal rights under Hindu law has been criticized by some as going against the rights of individual liberty and privacy under Article 21 of the Constitution. It has been argued that no spouse should be directed by a court through a coercive process to cohabit with an estranged partner. However, under the current law, it remains a legal remedy available to spouses seeking to preserve the marital relationship.
While Indian courts have the power to pass a decree for restitution of conjugal rights, they cannot force an unwilling party to resume cohabitation against their consent. The aggrieved spouse may have to ultimately seek divorce or separation if the other party refuses to restore conjugal rights despite a court decree.
Here are some additional resources that you may find helpful:
- The Hindu Marriage Act, 1955: https://indiankanoon.org/doc/13119/
- The Indian Divorce Act, 1869: https://indiankanoon.org/doc/13067/
- The Code of Criminal Procedure, 1973: https://indiankanoon.org/doc/14435/
Please note that I am not a lawyer, and this information is not intended to be legal advice. If you have any specific questions about your case, you should consult with an attorney.