Introduction

Marriage, under Indian law, is not just a sacred bond but also a legally enforceable civil contract that imposes mutual rights and obligations upon both spouses. One such fundamental right is the right to consortium, the legal right of one spouse to the company, affection, and cohabitation of the other. When one spouse, without a lawful reason, withdraws from the society of the other, the aggrieved spouse is entitled to seek judicial remedy through a petition for Restitution of Conjugal Rights (RCR).

Restitution of conjugal rights essentially means the restoration of marital companionship when one spouse has unreasonably deserted or separated from the other. It serves as a legal mechanism to protect the sanctity of marriage and encourages reconciliation before resorting to divorce. This concept, though civil in nature, is intertwined with constitutional, procedural, and evidentiary principles now governed by the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA), which replaced the IPC, CrPC, and Evidence Act respectively.

Legal Framework Governing Restitution of Conjugal Rights in India

The concept of Restitution of Conjugal Rights (RCR) is not uniform across all communities in India; it is recognized differently under various personal laws. However, the underlying principle remains consistent that marriage implies cohabitation, and unjustified withdrawal from it gives the other spouse the right to seek judicial enforcement.

1. Under Hindu Law – Section 9 of the Hindu Marriage Act, 1955

Section 9 of the Hindu Marriage Act, 1955 (HMA) is the primary provision governing RCR for Hindus. It states:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being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 of 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.”

Key Points under Section 9:

a)    Either spouse can file the petition.

b)   The burden of proof initially lies on the petitioner to establish withdrawal.

c)    The respondent must prove that the withdrawal was based on a “reasonable excuse.”

d)   The decree compels the spouse to resume cohabitation but does not authorize the use of force.

2. Under Muslim Law

Muslim personal law recognizes the concept of cohabitation rights but not through a specific statute. A husband or wife may seek restoration of conjugal rights through a civil suit if the other spouse has withdrawn without lawful cause. The court may grant a decree directing the return to matrimonial life if the withdrawal is unjustified, provided that the marriage is still valid and subsisting.

3. Under Christian Law – Section 32 of the Indian Divorce Act, 1869

For Christians, Section 32 of the Indian Divorce Act, 1869 provides that if either spouse has deserted the other without reasonable cause, the aggrieved spouse may petition for restitution of conjugal rights. The court may order the erring spouse to resume cohabitation unless legal grounds exist that make such restitution improper or unjust.

4. Under Parsi Law – Section 36 of the Parsi Marriage and Divorce Act, 1936

Under Section 36 of the Parsi Marriage and Divorce Act, 1936, either spouse can file a suit for restitution of conjugal rights if the other spouse has withdrawn from their society without reasonable cause. The principles remain similar to those under the Hindu Marriage Act.

5. Under the Special Marriage Act, 1954 – Section 22

Section 22 of the Special Marriage Act, 1954 (SMA) mirrors the provision in the HMA, allowing either party to seek restitution if one spouse has withdrawn from the society of the other without just cause.

How to File a Restitution of Conjugal Rights (RCR) Petition

Filing an RCR petition requires following the proper procedural steps, governed now by the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Code of Criminal Procedure. Although the RCR is a civil remedy, BNSS governs procedural aspects such as summons, service, and evidence.

Step 1: Jurisdiction

The petition must be filed before the District Court having jurisdiction under the relevant personal law:

a)    Where the marriage was solemnized, or

b)    Where the respondent resides, or

c)    Where the petitioner resides, if the respondent is residing outside India or has deserted the petitioner.

Step 2: Drafting the Petition

The petition must include:

a)    Details of marriage (date, place, and form of solemnization)

b)    Proof that the marriage is valid under the applicable personal law

c)    Facts showing that the respondent has withdrawn from the society of the petitioner

d)    Evidence that there is no reasonable excuse for such withdrawal

e)    Relief sought — decree of restitution of conjugal rights

Step 3: Filing and Serving Notice

a)    The petition is filed before the Family Court or District Court along with court fees, affidavits, and supporting documents.

b)   Once admitted, the court issues summons to the respondent as per BNSS procedural provisions (corresponding to old Sections 61–69 CrPC).

Step 4: Response and Evidence

The respondent may contest the petition by showing:

a)    Reasonable excuse for withdrawal (e.g., cruelty, adultery, or neglect), or

b)    Legal grounds such as invalidity of marriage.

Evidence is governed by the Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaces the Indian Evidence Act. Under the BSA, oral and documentary evidence, including digital communications, can be produced to establish withdrawal or justification.

Step 5: Court’s Inquiry and Decree

If the court is satisfied that:

1. The marriage is valid,
2. The withdrawal was without reasonable excuse, and
3. There is no legal impediment,

Then it may pass a decree of restitution of conjugal rights under Section 9 HMA / Section 22 SMA / relevant personal law.

Step 6: Enforcement

The decree is executed like a civil decree (under BNSS execution procedure), directing cohabitation. However, no physical force is used, non-compliance for one year may become a ground for divorce under Section 13(1-A)(ii) of the Hindu Marriage Act, 1955.

Grounds for Defence in an RCR Petition

A respondent can successfully oppose an RCR petition if they can prove:

a)    Cruelty by the petitioner (mental or physical),

b)    Adultery or illicit relationship,

c)    Failure to maintain or provide a safe marital environment,

d)    Loss of consortium due to voluntary acts of the petitioner,

e)    Any other legal bar such as nullity of marriage or subsisting decree.

Courts emphasize that restitution should not force cohabitation in a relationship where genuine reconciliation is impossible.

Landmark Judgments on Restitution of Conjugal Rights

1.        T. Sareetha v. T. Venkata Subbaiah (AIR 1983 SCC 356)

The Andhra Pradesh High Court famously struck down Section 9 of the Hindu Marriage Act as unconstitutional, holding that forcing cohabitation violates the right to privacy and human dignity under Article 21 of the Constitution.

2.        Harvinder Kaur v. Harmander Singh Choudhry (AIR 1984 Del 66)

In contrast, the Delhi High Court upheld the constitutionality of Section 9, observing that it serves a social purpose by attempting to preserve marriages and promote reconciliation.

3.        Saroj Rani v. Sudarshan Kumar Chadha (AIR 1984 SCC 90)

The Supreme Court finally resolved the conflict by upholding the validity of Section 9, holding that restitution of conjugal rights is not violative of Article 21. The Court reasoned that the decree does not compel sexual relations but merely offers an opportunity for cohabitation and reconciliation.

4.        Sushila Bai v. Prem Narayan (AIR 2005 MPLJ 111)

The Madhya Pradesh High Court reiterated that the decree of restitution cannot be executed by force and must rely on voluntary compliance. It can, however, form a ground for divorce if not obeyed for one year.

Constitutional Dimensions

While RCR remains a valid legal remedy, courts interpret it in light of Articles 14, 19, and 21 of the Constitution. The judiciary maintains that while the institution of marriage must be preserved, personal liberty and dignity cannot be infringed. Therefore, the decree for RCR aims at reconciliation, not coercion.

Conclusion

Restitution of Conjugal Rights (RCR) stands as a unique blend of civil law, personal law, and constitutional interpretation. It serves as a reconciliatory measure rather than a punitive one, giving estranged couples a final opportunity to restore marital harmony before resorting to dissolution.

The process involves a well-defined legal framework primarily under Section 9 of the Hindu Marriage Act, 1955 and Section 22 of the Special Marriage Act, 1954, supported by procedural and evidentiary rules under the BNSS and BSA.

However, it is crucial to understand that RCR is not meant to force companionship but to facilitate understanding and cooperation between spouses. A decree of restitution can only succeed when both parties genuinely intend to revive their relationship. Otherwise, it often becomes a precursor to divorce proceedings.

In the Indian legal landscape, the remedy of RCR continues to symbolize the balance between marital commitment and individual autonomy, reminding us that while the law can restore rights, only mutual respect and communication can truly restore a marriage.

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