Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
RESTITUTION OF CONJUGAL RIGHTS:
A COMPARATIVE STUDY AMONG
INDIAN PERSONAL LAWS AND
POSITION UNDER ENGLISH LAW
SARVESH KUMA...
Restitution of Conjugal Rights: Concept and
Origin
RCR neither recognized by the Dharmashastra nor did
the Muslim law mad...
 Hindus under Section 9 of the Hindu Marriage Act, 1955,
1. When either the husband or the wife has,/
2. without reasonab...
RCJ UNDER DIFFERENT PERSONAL
LAWS:
Muslims under general law,
Christians under Section 32 and 33 of the Indian Divorce
A...
 Under all personal law, the requirements of the
provision of RCR are the following:
1. The withdrawal by the respondent ...
The court will normally order restitution of
conjugal rights if:
1. The petitioner proves that the respondent spouse has
...
WHAT AMOUNTS TO REASONABLE
EXCUSE:
The court has held in various cases that the following
situations will amount to a rea...
CONSTITUTIONALITY: RELIEF OF
RESTITUTION OF CONJUGAL RIGHTS
The constitutional validity of the provision for RCR has
time...
APPLICATION OF THE PROVISION IN
DIFFERENT COMMUNITIES: WHAT
AMOUNTS TO REASONABLE EXCUSE:
 Hindus :
– Any ground on which...
 Muslims :
– Cruelty by spouse or in-laws
– On the failure by the spouse to perform marital obligations
– On non-payment ...
 PARSIS : (PROVISION SIMILAR TO SEC. 9 ( OF
H.M.A.)
– Where a husband/wife shall have deserted or without
lawful cause ce...
Important Provisions under Hindu, Christian
and Muslim Law
 A petition for RCR is maintainable only when there is a valid...
 A decree for RCR cannot be refused in a marriage in violation of
the age under Hindu and Christian law while in Muslim l...
 Under Hindu and Christian law separation agreements are not
allowed while under Muslim law valid separation agreement is...
Steps for filing a suit/petition for RCR
1. Decide the appropriate court and its location having
jurisdiction to adjudicat...
Conclusion
• It is a remedy that is aimed at preserving the marriage and not at
disrupting it as in the case of divorce or...
RESTITUTION OF CONJUGAL
RIGHTS: English law
• In English law, restitution of conjugal rights was an
action in the ecclesia...
Upcoming SlideShare
Loading in …5
×

Restitution of conjugal rights a comparativestudy

  • Be the first to comment

Restitution of conjugal rights a comparativestudy

  1. 1. RESTITUTION OF CONJUGAL RIGHTS: A COMPARATIVE STUDY AMONG INDIAN PERSONAL LAWS AND POSITION UNDER ENGLISH LAW SARVESH KUMAR ASST. PROFESSOR (ALS)
  2. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

    Be the first to comment

    Login to see the comments

  • apurvasolanki165

    Nov. 15, 2015
  • SanjidaSohaSoha

    Apr. 25, 2016
  • VishvasKhatak

    Nov. 14, 2017
  • PenkiAnilkumar1

    Apr. 20, 2018
  • RAMPRASADNAIKBHUKYA

    Mar. 30, 2019
  • ManojNayak19

    Nov. 14, 2019

Views

Total views

3,452

On Slideshare

0

From embeds

0

Number of embeds

3

Actions

Downloads

48

Shares

0

Comments

0

Likes

6

×