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Conjugal Rights How to be Restored


Conjugal Rights How to be Restored
The couple who are married agreed to share their life which means they have certain duties and responsibility towards each other. Conjugal Rights also mean the same when the couple is married they have certain matrimonial rights which should be performed by both the spouses. Conjugal Rights includes: 1. Living together: The spouses or the married couple should live together. 2. Marital intercourse: The spouses or the married couple have rights and duties together with each other and have physical or sexual relationships. 3. Comfort to each other: The spouses should give comfort to each other like; emotional and mental comfort. 4. Matrimonial Obligation: The married couple is supposed to share the responsibility of the households as well. Since the two people are sharing their life one person cannot take responsibility for everything which means they have to share the household chores.

Marriage is one of the beautiful and one of the important stages of everyone's life. It is a life-changing decision of two people who agreed to share their life with each other. But no one can predict the future, sometimes the two people who agreed to share their life might face problems in it. Marriage is considered to be a roller coaster ride which means sometimes up and sometimes down, it depends on the couple whether they are able to face the downs with the ups. Sometimes they are not, when they are not then they seek happiness in being apart from either by judicial separation or by divorce. In this blog, we will discuss what conjugal rights mean? Who can file for restitution of conjugal and where? under which law restitution of conjugal rights can be filed? How is a denial of conjugal rights grounds for divorce ?

Conjugal Rights: The couple who are married agreed to share their life which means they have certain duties and responsibility towards each other. Conjugal Rights also mean the same when the couple is married they have certain matrimonial rights which should be performed by both the spouses. Conjugal Rights includes:

1.    Living together: The spouses or the married couple should live together.

2.    Marital intercourse: The spouses or the married couple have rights and duties together with each other and have physical or sexual relationships.

3.    Comfort to each other: The spouses should give comfort to each other like; emotional and mental comfort.

4.    Matrimonial Obligation: The married couple is supposed to share the responsibility of the households as well. Since the two people are sharing their life one person cannot take responsibility for everything which means they have to share the household chores.

Laws that talks about conjugal rights are as follows:

1.    Section 9 of The Hindu Marriage Act .

2.    Section 32 of the Indian Divorce Act.

3.    Section 22 of the Special Marriage Act.

4.    Section 36 of The Parsi Marriage and Divorce Act.

Restitution of Conjugal Rights: If any of the spouses refuse to live together or withdraw herself/himself from the society of their respective halves for no reason or refuse to enjoy the conjugal rights. Court to maintain gender equality provided some legal provisions to let the spouses have their rights. If the spouses are not enjoying the conjugal rights then the other spouse can file suit for restitution of conjugal rights. To file the suit for restitution of the conjugal rights the partner who is filing has to prove it, and certain condition needs to be fulfilled to file suit for restitution of conjugal rights:

1.    The defendant has refused from cohabitation or is withdrawing from the society of the other spouse or petitioner. One of the most important things need to keep in mind that it is not necessary that they are not living together makes the other partner file suit for restitution of conjugal rights, if they are in contact or communicating and staying away is due to work or for some other valid reason then it will not be considered as a refusal from the society.

2.    The statement made and mentioned by the petitioner should be true and no false statement had been made and there has to be unreasonable ground for the refusal from the society of the significant half.

3.    If the relief or the application is being denied then there should not be any legal grounds mentioned for that.

Procedure to file the suit for restitution of conjugal rights: When it comes to filing any type of suit or case it needs to be done in a proper manner and there are certain procedures that need to be followed by the person who is initiating any legal proceedings against any person. In this case, the procedure is as follows:

1.    The spouse who wants to file the suit for restitution should contact a lawyer specialized in such cases, he/she will file the application on your behalf in the district court from which it will be transferred to High Court.

2.    From there a petition copy will be sent to the other spouse or the other partner, also the date of the hearing regarding the matter.

3.    On the given date of hearing both the husband and the wife has to be present in the court for the case hearing.

4.    The court will send them to the counselor for their case where they will describe their issues and try to resolve the matter. In general, the court will send them for 3 sessions and there will be a 20 days time gap between each session.

5.    After the 3 counseling sessions, the judge will pass the decree either in favor of the petitioner or defendant depending upon the statements of the parties and the counselor.

Rejection of the application of restitution of conjugal rights: There are certain cases where the court may deny the application for the restitution of conjugal rights, but there has to be a proper reason for the denial of the conjugal rights which are as follows:

1.    If the spouse or the defendant is staying away or apart is due to any type of matrimonial issues or problems then the application may be denied.

2.    If the spouse or the petitioner has committed any type of misconduct or any bad behavior or there is any type of abuse, then the application for restitution of conjugal rights may be denied.

3.    There is any cruelty from any party or the in-laws it would amount to a rejection of the application.

4.    If the parties are causing or willingly dragging the case for no reason then the application may get rejected.

What happens when the application is rejected or the proceeding is taking time: Legal proceeding takes time and also depends upon the statements and the evidence if the court is satisfied there is a proper reason for staying apart or the spouse have a valid reason for withdrawing from the other spouse’s society then the court may grant the degree in favor of the defendant.

If the petitioner gets rejected or the petitioner loses the case then the petitioner has the right to file a case for judicial separation or for divorce.

If the case is taking longer than the petitioner or the court expected then the application may get rejected and the petitioner can file for judicial separation and divorce.

If the decree is passed in the favour of the petitioner but the defendants refused to comply or failed to perform and came back within one year then again, the petitioner can file for judicial separation or divorce.

Judicial Separation: Sometimes a couple does not want to officially call their marriage off but needs some time to sort things out or need time to think but not ready to part their ways for forever, so they go for judicial separation. It suspends their marriage for some time which makes the couple realize how important their marriage is and the significant half is for them also gives them time to solve the issues they are having.

Grounds for judicial separation:

1.    Adultery: It is one of the main reasons for judicial, when any of the spouses is sexually involved with someone else or other than the spouse, it is called adultery.

2.    Cruelty: When any of the spouses has committed any type of cruelty towards the other spouse. For any type of abuse then it will become the ground for judicial separation.

3.    Desertion: When any of the spouses or the party deserts the other spouse or the party without any reason or consent for 2 continuous years then the spouse who gets deserted can file for judicial separation.

4.    Unsound Mind: If one of the spouses has an unsound mind or not in his/her senses then the other spouse can file for judicial separation.

5.    Conversion: When one of the spouses opt for any other religion or convert himself/herself into some other religion then the other spouse can file for judicial separation.

6.    Leprosy: If one of the spouses is suffering from any disease which is incurable or long term then the other spouse can file for the judicial separation.

7.    Missing for 7 years: If the spouse is not being found or haven’t seen for 7 years then the other spouse can file for judicial separation.

Divorce: When a married couple no longer wants to continue their marriage or are unable to resolve the issues they have or they have any issues which make them unable to continue their marriage, they seek court’s help in dissolving their marriage or getting divorced.

Grounds for divorce:

1.    Desertion: When any of the spouses leave the other spouse for no reason and without consent then the spouse who is getting deserted can file for divorce.

2.    Cruelty: If any spouse mistreats their spouse or behaves badly or abuses verbally or physically then the other spouse can ask for a divorce.

3.    Adultery: When any of the spouses are having affairs with some or involved in sexual activity with another person then their spouse the other spouse can file a case for divorce.

4.    Unsound Mind: When any of the spouses is insane or becomes insane due to any reason and the other spouse does not want to continue their marriage then he/she can file for divorce.

5.    Leprosy: If the spouse is suffering from a disease that is incurable or has a long time effect then the other spouse can ask for a divorce.

6.    Conversion: When one of the spouses converts himself/herself into some other religion then the other spouse can file for divorce.

7.    Mutual Consent: When both the party or the spouses think that it's better to call their marriage off or think that they are not happy together anymore and should part their ways then they can file for divorce on this ground, where they both agree for it.

8.    Customary Divorce: When the divorce is performed by following the rules of the customs is customary divorce.

9.    Breakdown of marriage: If the spouses or any one of the party claims that there is no cohabitation of the marriage or they are not enjoying the conjugal rights or there is no restitution of conjugal rights for up to the period of 1 year then they can seek divorce.

Cases on Conjugal Rights with respect to Constitutional Validity:

T. Sareetha v. T.Venkata Subbaiah: In this case, the Court held that restitution of conjugal rights is a violation of Articles 14, 19, and 21 of the Indian Constitution. Court held that this right violates the freedom of a woman. It took away the rights of the woman that when and how she wants to live her life or consume her marriage. Hence the court held that it should be held void and arbitrary.

Harvinder Kaur v. Harmandar Singh: In this case, the court states the objective of restitution of conjugal rights, the court held that the object behind this right is to make the married life stable for husband and wife and to encourage reconciliation and conjugal rights do not talk about sexual intercourse only it talks about the marital relationship overall which makes it valid.

Saroj Rani v. Sudarshan Kumar: In this case, the Court held that restitution of conjugal rights is not violating any of the fundamental rights of the spouse or is not violating Article 14,19, or 21 of the Indian Constitution. On the other hands, it is stopping a marriage from being dissolved which means it is serving a social purpose but if any of the spouses is not complying with the decree of restitution of conjugal rights for 1 continuous year then they can get a divorce on this ground as a court cannot force a person to have a physical relationship or sexual intercourse.

Conclusion: Hence it is concluded that conjugal rights include all marital rights not just sexual intercourse, conjugal rights talk about the rights of spouses to living together, sharing household chores, fulfilling responsibility as husband or wife towards each other and the family and just because spouses are not living in the same house does not mean they are not cohabiting, if they are having a conversation or communicating that will ask for restitution of conjugal rights. Also, it is not unconstitutional or it does not violate the fundamental rights of the spouses.

*****


Posted On : May 1, 2021

Written By :
Kishan Dutt Kalaskar Retired Judge
32 Years
Bangalore | Kolkata | Mumbai | Hyderabad | Chennai |
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