INTRODUCTION
According to Hindu Law, marriage is a notion of sacred wedlock between males and females, and they become one through marriage. Marriage is considered an important institution in society and has also been accepted in every religion under all personal laws. Under matrimonial law, marriage imposes specific marital responsibilities and duties, and further legal rights are set on each other. Living together is an essential implication of marriage, and one spouse has the right and authority to console the other.
LEGAL PROVISIONS RELATING TO THE RESTITUTION OF CONJUGAL RIGHTS
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.
Section 13 provides the right to married couples to claim for divorce within one year of passing a decree of restitution if the team can't comply with the decree this remedy is also used as a defense in maintenance cases regarding section 125 of the Cr.p.c.
Under the Special Marriage Act of 1954, it is given under Section 22. The provisions read identically and are as follows –
When either of the spouses has withdrawn from the society of the other without a reasonable reason, the aggrieved party may file a suit to the district court for restitution of conjugal rights. After being satisfied with the petitioner’s arguments and confirming that there is no legal embargo on such a claim, the court can decree restitution of conjugal rights.
CONDITION TO BE PROVED FOR DECREE OF RCR
In a suit for a decree for restitution of conjugal rights, the petitioner needs to prove the following conditions –
PROCEDURE OF RESTITUTION OF CONJUGAL RIGHTS
After filing the petition, a copy will be sent to the other party along with the hearing date; after that, both parties should appear before the court on the mentioned dates and will be sent for counseling sessions by the court. Usually, the court recommends three sessions every twenty days between sessions which continue for four months. The judge finally passes a decree depending on the parties’ statement and the counseling held.
In the case of Sushila Bai v. Prem Narayan, the court ordered the restitution of conjugal rights.
EXECUTION OF RESTITUION OF CONJUGAL RIGHTS
When any spouse obtains a decree from a trial court, their next step is to satisfy the decree by filing its execution petition before the court. Execution is the proceeding by which the Decree Holder moves to the trial court for the satisfaction of the decree is called execution. Execution empowers the decree-holder to recover the decretal amount or relief granted under the decree from the judgment debtor.
Order (21) rule (32) of C.P.C deals with the execution of the decree passed for restitution of conjugal rights.
It reads as under:
"Where the party against whom a decree for the specific performance of a contract, or restitution of conjugal rights or an injunction, the stay has been passed, has had an opportunity of obeying the decree and if he has wilfully failed to obey it, the decree may be enforced, in the case of a decree for restitution of conjugal rights."
The decree can be in imposed in two ways-
The execution proceeding for a decree under Section 9 conceives of only one contingency. If the decree is not obeyed, then the property of the opposite party can be attached. Petitioner has yet to show any existing property; therefore, whatever the Executing Court could do has not been asked for. What the Executing Court made before that Court for any reconciliation proceedings. This court is only dealing with what was not supposed to do is asked for in this Court. No mention that any prayer was an order passed by the Executing Court. No illegality could be rectified in revisional jurisdiction. That being the position, the only request and argument raised by the learned counsel for the petitioner for reconciliation are beyond the scope of this revision petition. The submission of the learned counsel for the petitioner is in the background that neither party has instituted a divorce petition. They may need to be more serious about itso that the question of not holding reconciliation in execution cannot be gone into.
The provision under C.P.C. dealing with arrest and detention for executing a decree are substantive from Sec. 51 to Sec. 59, read with procedural provisions Order 21 Rule 30 to Order 21 Rule 40. This way of decree execution is done only in exceptional cases.
There were many issues around the non-compliance of the decree of Restitution of conjugal rights in the following years.
All the controversies on this issue have come to rest on the decision of Saroj Rani v Sudarshan Kumar, where the Hon'ble Supreme Court of India has held that after a decree for restitution of conjugal rights, the husband is entitled to a decree of divorce under s. 13 of the Act. His failure to resume cohabitation would not amount to "wrong" within the meaning of s. 23(1)(a) of the Act. But where the husband has obtained a decree for restitution of conjugal rights, only to seek a divorce under s. 13(1 A)(ii) of the Act, and preventing the wife from performing her conjugal duties by driving her away from the house constituted misconduct under s. 23(1)(a) of the Act as the husband was taking advantage of his own wrong; hence, he was not entitled to any relief under s—13 (1A) of the Act.
STICKING OF RESTITUTION OF CONJUGAL RIGHTS PROVIDING HINDU MARRIAGE ACT,1956
In January 2020, a Supreme Court bench took a response from the Attorney General regarding a prayer to strike down the restitution of conjugal rights provision. There is a possibility that the provision may be quashed since the petition has been filed and a reference has been sought; however, the matter remains pending for further consideration by the Apex Court. This, if quashed, shall be a turning point in the history of personal laws and will be worth the time to follow up on its advancements.
The provision is the subject matter of challenge before the Supreme Court in Ojaswa Pathak &Anr v. Union of India. Its relevance is considering the right to privacy under Article 21 as Articles 14 and 15 of the Constitution of India.
Can visitation or custody rights be passed during the proceeding of restitution of conjugal rights?
The Supreme Court observed that orders giving visitation rights or temporary child custody could not be passed in proceedings under Section 9 of the Hindu Marriage Act (Restitution of conjugal rights).
In this case, the husband filed a petition under Section 9 of the Hindu Marriage Act, 1955, seeking Restitution of Conjugal Rights against the wife before the Family Court at Puducherry. In these proceedings, he filed an interlocutory application, purportedly to be a petition under Section 26 of the Act, for the grant of custody of the child. Both the petitions were entertained ex-parte and then decree.
After that, the wife approached the Apex Court seeking transfer of these proceedings to Family Court, Bengaluru. The husband contended that the Section 9 Petition aimed to be transferred by the wife has already been decided, and therefore the instant Transfer Petition has become infructuous.
"The petitioner (wife) has been denied a fair trial only because she could not leave the child at Bangaluru and visit Puducherry to contest both the petitions. The respondent (husband) should have filed a separate and independent petition under Section 26 of the Hindu Marriage Act, 1955, instead of securing an Order in the proceedings pending under Section 9 of the Act. The Order dated 03062019 giving visitation rights or temporary custody of the child to the respondent (husband) is, thus, patently illegal. ", the bench of Justices Surya Kant and J K Maheshwari said.[8]
CONCLUSION
Marriage is indeed a fabric that essentially holds society together, and it’s in the state’s public policy to uphold the status of marriage wherever possible; however, coercing spouses into continuing the marriage should not be the way forward, but it provides an opportunity to couple to reconcile. Though there is much controversy regarding the constitutionality of section 9, the question is still pending before the Supreme Court Writ Petition (Ojaswa Pathak).
CAPTIONS
#MARRIAGE #DIVORCE # RCR #FAMILY_COURT # SEPRATION #CHILD_CUSTODY #VISTATION_RIGHTS
SECTION 9, HMA 1955
Hindu Marriage Act 1955, s 13
Criminal Procedure Code 1973, s 125
Section 22 in The Special Marriage Act, 1954
Rakesh Phukan v. Juri Boruah, AIR 2014 Gauhati 68
Sushila Bai v. Prem Narayan ,AIR 1986 MP 225
Vijay Kumar v. Neelam Rani, AIR 2004 Raj 256
Priyanka vs Santoshkumar | 2022 LiveLaw (SC) 1021
