Atri Chattopadhyay, National University of Juridical Sciences, Kolkata
INTRODUCTION
Marriage, as commonly understood, is a union between two individuals and whether treated as a sacrament or a contract, the parties to a marital relationship enter into an implied agreement to stay within the company of each other and both the parties fulfil the obligations and enjoy the rights arising out of a marriage. This is known as Conjugal Life, and the rights arising out of a marriage are thereby termed conjugal rights. However, when one of the parties leaves the other without any lawful justification, the aggrieved party can seek legal recourse under the codified personal laws of India, which differ from one religion to another. This recourse is known as Restitution of Conjugal Rights. For the scope of this paper, we shall restrict our discussion to the aspect of Hindu law only. Section 9 of the Hindu Marriage Act, 1952, which is the governing statute for Hindu marriages in India, says that “when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other; the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with the truth of the 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.” So, the determination of unreasonability is crucial to this provision. The conjugal rights of the petitioner should therefore only be restored when the desertion of a spouse is without any lawful justification. Persistent demand for dowry or causing physical and mental torture is a reasonable cause for the wife to withdraw from the husband's society. However, it is often seen that this provision is put to the wrong use. Instead of utilising it for its intended purpose, it is misused by abusive husbands to force their wives into cohabiting with them and prevent them from contesting successful suits for divorce or maintenance. Therefore, instead of a legal remedy, it is being used more as a defence against a lawful action by an aggrieved wife and the law, whose purpose is to ensure the welfare of citizens, is haplessly being used to undermine and violate essential human, fundamental and constitutional rights.
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