Restitution of conjugal rights, Lecture notes of Law

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 Rig veda-o bride and bridegroom! You twoRig veda-o bride and bridegroom! You two stay here. Never be disunited. Enjoy with stay here. Never be disunited. Enjoy with the full span of life. play with children. Be the full span of life. play with children. Be happy in your home. happy in your home.  Manu smirti-he only is a perfect man whoManu smirti-he only is a perfect man who consists his wife, himself and offsprings. consists his wife, himself and offsprings.  HL stress on the wife implicit obediance toHL stress on the wife implicit obediance to her husband. her husband.  It is never imagined that wife would desertIt is never imagined that wife would desert husband and refrain from giving conjugal husband and refrain from giving conjugal bliss to husband. bliss to husband.

 IngrediantsIngrediants  There should be valid marriage.-There should be valid marriage.- because this right is inherently present because this right is inherently present in the marriage. in the marriage.  Opposite party may refuse that he/sheOpposite party may refuse that he/she is married with other. is married with other.  One party says marriage was inOne party says marriage was in violation of sec 5(iii)-there is no ground violation of sec 5(iii)-there is no ground to refuse relief of RCR because to refuse relief of RCR because marriage is valid. marriage is valid.

 Withdrawn from the society of otherWithdrawn from the society of other  It involves a mental process besides physicalIt involves a mental process besides physical separation. separation.  The act of temporarily leaving the matrimonialThe act of temporarily leaving the matrimonial home would not amount to withdrawal as home would not amount to withdrawal as “animus decidendi” i.e intention to withdraw “animus decidendi” i.e intention to withdraw permanently is missing. permanently is missing.  Where wife and husband live separetely andWhere wife and husband live separetely and meet occasionally due to exceptional meet occasionally due to exceptional circumstances [No withdrawal] circumstances [No withdrawal]  Tirath kaur v kripal singh AIR 1964 punjTirath kaur v kripal singh AIR 1964 punj  Swaraj Garg v.K.M.Garg AIR 1978 DelSwaraj Garg v.K.M.Garg AIR 1978 Del

 Object of RCR-to bring the spouses togetherObject of RCR-to bring the spouses together to enjoy a conjugal life. to enjoy a conjugal life.  Withdrawal without reasonable excuse-Withdrawal without reasonable excuse-  Reasonable excuse is not defined in Act.Reasonable excuse is not defined in Act.  Sec 125 cr.p.c uses ‘just ground’ for refusingSec 125 cr.p.c uses ‘just ground’ for refusing to live with the husband. to live with the husband.  Sec 18 of HAMA allows wife to live separetelySec 18 of HAMA allows wife to live separetely without forfeiting her right for maintenance. without forfeiting her right for maintenance.  So interpretation will be on similar line.So interpretation will be on similar line.

 It will be duty of respondent to satisfy courtIt will be duty of respondent to satisfy court about this reasonable cause. about this reasonable cause.  Some examplesSome examples  Husband refused to have sex with wife.Husband refused to have sex with wife.  Husband was keeping a concubine in house.Husband was keeping a concubine in house.  Wife being teetotaller and vegitarian wasWife being teetotaller and vegitarian was compelled to take wine and non-veg. compelled to take wine and non-veg.  Wife working at different place[as she hasWife working at different place[as she has no animus dicerendi.[Garg case] no animus dicerendi.[Garg case]

 One family members suffering fromOne family members suffering from tuberculosis , wife refuse to live there but tuberculosis , wife refuse to live there but ready to live in another flat with husband. ready to live in another flat with husband.  Cruelty [anti thesis to love and affection]–Cruelty [anti thesis to love and affection]– physical or mental is sufficient ground to live physical or mental is sufficient ground to live separetely separetely  False allegation as to character of other party.False allegation as to character of other party.  Habitual ill treatment of wife or husbandHabitual ill treatment of wife or husband  Allegation of adultery which is found baseless.Allegation of adultery which is found baseless.  Illegal demand of dowryIllegal demand of dowry  This list is illustrative not exhaustive.This list is illustrative not exhaustive.

 Cases where court awarded RCRCases where court awarded RCR  Wife withdraws because husband is notWife withdraws because husband is not earning. earning.  Husband unable to provide fine clothes toHusband unable to provide fine clothes to wife.etc wife.etc  Here one partyHere one party files case u/s 9 for RCR andfiles case u/s 9 for RCR and other files case u/s 13 for divorce on ground other files case u/s 13 for divorce on ground like cruelty. like cruelty.  Wife goes to parent ‘s home. Husband filesWife goes to parent ‘s home. Husband files a case of divorce on ground of desertion. a case of divorce on ground of desertion. court may ask to go for RCR. court may ask to go for RCR.

 Sec 9 and impotencySec 9 and impotency  If Either of parties in healthy physicalIf Either of parties in healthy physical condition refuses to have sexual condition refuses to have sexual relationship, then other can say it as relationship, then other can say it as reasonable ground. In such a case reasonable ground. In such a case marriage can be held voidble. marriage can be held voidble.

 Burden of proofBurden of proof  Sec 101 Evidence Act –whoeverSec 101 Evidence Act –whoever desires any court to give judgement desires any court to give judgement in his /her favour-must prove the in his /her favour-must prove the existence of fact upon which legal existence of fact upon which legal rights depend. rights depend.

 Important NotesImportant Notes  Reasonable excuse [less strict] shouldReasonable excuse [less strict] should not be confused with reasonable cause not be confused with reasonable cause or justification. or justification.  Grievances of normal married life,Grievances of normal married life, minor quarrels and ordinary wear and minor quarrels and ordinary wear and tear of married life are not sufficient tear of married life are not sufficient grounds. grounds.  Principle of res judicata applies.Principle of res judicata applies.

 Decree of RCR can not be executedDecree of RCR can not be executed by compelling respondent to live and by compelling respondent to live and cohabit with petitioner. cohabit with petitioner.  Injunction –there is no such provisionInjunction –there is no such provision in Act. in Act.

Constitutional validity of RestitutionConstitutional validity of Restitution

of conjugal rights. of conjugal rights.

 T .sarita v. T. Venkata subhayya, AIRT .sarita v. T. Venkata subhayya, AIR 1983 AP 1983 AP  Held that sec 9 is violative of Art.14Held that sec 9 is violative of Art. and Art.21 and Art.  Decree applying financial sanctionDecree applying financial sanction was used against disobeying party. was used against disobeying party.  Court said it is choice of wife to allowCourt said it is choice of wife to allow body to be used body to be used or not. [violation ofor not. [violation of privacy] privacy]

Constitutional validity of RestitutionConstitutional validity of Restitution

of conjugal rights. of conjugal rights.

 Harvinder kaur v. Harmander singh,Harvinder kaur v. Harmander singh, AIR 1984 Del AIR 1984 Del  Delhi held it is not violative of Art.14Delhi held it is not violative of Art. and 21. and 21.  Introduction of constitutional law inIntroduction of constitutional law in home is most inappropriate and it is home is most inappropriate and it is like introducing a bull in china shop. like introducing a bull in china shop.  In the privacy of home and marriedIn the privacy of home and married life neither Art 14 or 21 have any role. life neither Art 14 or 21 have any role.

Constitutional validity of RestitutionConstitutional validity of Restitution

of conjugal rights. of conjugal rights.

 Saroj Rani v. Sudarshan kumarSaroj Rani v. Sudarshan kumar chadha AIR 1984 SC chadha AIR 1984 SC  Court overruled the judgement ofCourt overruled the judgement of T.Sarita case. T.Sarita case.  Court said O 21.Rule 31 & 32Court said O 21.Rule 31 & 32 CPC[execution of decree and order] CPC[execution of decree and order] provides only financial sanction to provides only financial sanction to serve social purpose to prevent serve social purpose to prevent break-up of marriage. break-up of marriage.