1. RESTITUTION OF CONJUGAL RIGHTS:
A COMPARATIVE STUDY AMONG
INDIAN PERSONAL LAWS AND
POSITION UNDER ENGLISH LAW
SARVESH KUMAR
ASST. PROFESSOR (ALS)

2. Restitution of Conjugal Rights: Concept and
Origin
RCR neither recognized by the Dharmashastra nor did
the Muslim law made any provisions for it.
It came with the Raj or the British Rule.
The concept of restitution of conjugal rights was
introduced in India in the case of Moonshee Buzloor
Ruheem v. Shumsoonissa Begum, (1867) 11 MIA 551.
contd.

3.  Hindus under Section 9 of the Hindu Marriage Act, 1955,
1. When either the husband or the wife has,/
2. without reasonable excuse, withdrawn from the society
of the other,/
3. the aggrieved party may apply, by petition to the district
court, for restitution of conjugal rights and/
4. the court, on being satisfied of the truth of the
statements made in such petition and/
5. that there is no legal ground why the application should
not be granted,/
6. may decree restitution of conjugal rights accordingly.
• [ Explanation. —Where a question arises whether there
has been reasonable excuse for withdrawal from the
society, the burden of proving reasonable excuse shall be
on the person who has withdrawn from the society.]
contd.

4. RCJ UNDER DIFFERENT PERSONAL
LAWS:
Muslims under general law,
Christians under Section 32 and 33 of the Indian Divorce
Act, 1869,
Parsis under Section 36 of the Parsi Marriage and
Divorce Act, 1936
Persons married according to the provisions of the Special
Marriage Act, Section 22 of the Special Marriage Act,
1954.
contd.

5.  Under all personal law, the requirements of the
provision of RCR are the following:
1. The withdrawal by the respondent from the society of
the petitioner. i.e. from the totality of conjugal
relationship
2. The withdrawal is without any reasonable cause or
excuse or lawful ground.
3. There should be no other legal ground for refusal of the
relief.
4. The court should be satisfied about the truth of the
statement made in the petition.
contd.

6. The court will normally order restitution of
conjugal rights if:
1. The petitioner proves that the respondent spouse has
without reasonable excuse withdrawn from his/her
society
2. The statements made by the aggrieved spouse in the
application are true, and
3. There is no legal ground why the petitioner’s
prayer should not be granted
contd.

7. WHAT AMOUNTS TO REASONABLE
EXCUSE:
The court has held in various cases that the following
situations will amount to a reasonable excuse to act
as a defence in this area:
1. A ground for relief in any matrimonial cause.
2. A matrimonial misconduct not amounting to a ground of
a matrimonial cause, if sufficiently weighty and grave
3. Such an act, omission or conduct which makes it
impossible for the respondent to live with the petitioner.

8. CONSTITUTIONALITY: RELIEF OF
RESTITUTION OF CONJUGAL RIGHTS
The constitutional validity of the provision for RCR has
time and again been questioned and challenged.
In 1983 before the AP HC in T.Sareetha v. T.
Venkatasubbaiah AIR 1983 AP. 356 where the Court
held that the impugned section was unconstitutional.
Supreme Court in Saroj Rani v. Sudharshan AIR. 1984
SC 1562 upheld the constitutional validity of the
Section 9 of the Hindu Marriage Act, 1955

9. APPLICATION OF THE PROVISION IN
DIFFERENT COMMUNITIES: WHAT
AMOUNTS TO REASONABLE EXCUSE:
 Hindus :
– Any ground on which the respondent could have asked for a
decree for judicial separation or for nullity of marriage or
for divorce will amount to
– Reasonable excuse for withdrawing from the society of the
petitioner;
– Any conduct on the part of the petitioner or fact tantamount to
the petitioner taking advantage of his or her own wrong or
any disability for the purpose of such relief will also amount
to reasonable excuse.
contd.

10.  Muslims :
– Cruelty by spouse or in-laws
– On the failure by the spouse to perform marital obligations
– On non-payment of prompt dower by the husband
 Christians :
– Cruelty of husband or wife
– If either of the spouse is insane
– If any one of the spouse marries again
contd.

11.  PARSIS : (PROVISION SIMILAR TO SEC. 9 ( OF
H.M.A.)
– Where a husband/wife shall have deserted or without
lawful cause ceased to cohabit with his/her spouse,
– the party so deserted or with whom cohabitation shall
have so ceased, may sue for the restitution of his or her
conjugal rights and
– the court if satisfied of the truth of the allegations
contained in the plaint and that there is no just ground
why relief should not be granted, may proceed to decree
such RCR accordingly.

12. Important Provisions under Hindu, Christian
and Muslim Law
 A petition for RCR is maintainable only when there is a valid
marriage.
 A Hindu and Christian can file a petition for RCR while under
Muslim law a suit in a civil court has to be filed.
 The concept of gender discrimination has not been incorporated
in the Hindu and Christian Marriage but a Muslim husband can
defeat wife’s petition for restitution at any time by pronouncing
talaq on her
contd.

13.  A decree for RCR cannot be refused in a marriage in violation of
the age under Hindu and Christian law while in Muslim law
under Section 2 (vii) of the Dissolution of Muslim Marriage
Act, 1939 when the marriage has been avoided in the exercise of
option of puberty the suit for RCR fails
 Under Hindu and Christian law polygamy not allowed while
under Muslim law controlled polygamy is allowed
 Under Hindu law as well as Christian law the courts have wide
power and discretion to decide what constitute cruelty. While in
Muslim law, Section 2 (viii) of the Dissolution of Muslim
Marriage Act, 1939, both physical cruelty as well as legal
cruelty together with all instances of cruelty is included under the
definition of cruelty.

14.  Under Hindu and Christian law separation agreements are not
allowed while under Muslim law valid separation agreement is a
good defence to a suit for RCR
 The concept of dower is specific to Mohammedan law only. A
Muslim wife living separate from the husband on account of non
payment of prompt dower, RCR cannot be granted subjected to
certain conditions.

15. Steps for filing a suit/petition for RCR
1. Decide the appropriate court and its location having
jurisdiction to adjudicate the case
2. Drafting the Plaint
3. Remitting the Court fees into the Court and filing the Plaint
4. Getting process served to the respondents
5. Initial hearing
6. Filing of written statement by the respondents
7. Framing of Issues by the Court
8. Posting of the suit for evidence
9. Filing documents & Leading Evidence
10. Evidence by the respondents
11. Posting for Final Arguments
12. Posting the case for Pronouncement of the decree & Passing
of Decree

16. Conclusion
• It is a remedy that is aimed at preserving the marriage and not at
disrupting it as in the case of divorce or judicial separation
• The court cannot compel the defaulting spouse to physically
return to the comfort-consortium of the decree-holder spouse
• “You can take a horse to the water, but you can't make him
drink”

17. RESTITUTION OF CONJUGAL
RIGHTS: English law
• In English law, restitution of conjugal rights was an
action in the ecclesiastical courts. It was one of the
actions relating to marriage, over which the
ecclesiastical courts formerly had jurisdiction.
• This could be brought against a husband or wife who
was guilty of "subtraction"; that is, living away from
their spouse without a good reason. If the suit was
successful, the married couple would be required to
live together again.
• A Law Commission report in 1969 recommended its
abolition. The action was abolished by the Matrimonial
Proceedings and Property Act 1970.