Family and marriage are the basic institutions of any society. Every society has certain norms and rules which have led to the development of key concepts such as customs and usages. Marriage as an important institution has been recognized in the personal laws of all the religions. With the passage of time, the complexities increased with areas such as divorce, judicial separation and conjugal rights came up in personal law and it became necessary to codify the laws relating to marriage in India.
The Hindu law recognized the sacredness of the marriage tie. The wife was given an honoured position as “women is half her husband and completes him”. Hindu law enjoined on the spouses to have the societies of each other. After the marriage bride becomes the member and backbone of the groom’s family. The remedy of restitution of conjugal rights was not recognized in the DHARMASHATRAS.As the phase changed with globalization and modernization the Jewish law provided the remedy of restitution of conjugal rights. From Jewish law the remedy was adopted in English law and latter it came to Indian law. Marriage is the existence of rights between spouses. These rights may also be called restitution of conjugal rights, offered to the disadvantaged party. The guarantee given by the Indian Constitution to every citizen with respect to the protection of fundamental rights has left some scope for ambiguity in this provision. This has led in recent times to a heated debate as to the constitutional validity of the concept with regard to the personal laws existent in the society. Meaning of Restitution
Restitution basically means restoring to a party to its original place. RESTITUTION OF CONJUGAL RIGHTS: MEANING AND SCOPE:
The institution of Marriage is often regarded as a primary institution in this society of ours. An individual's existence in the society is guided by institutions which are often regarded as established forms of procedure characteristic of group activity. Later on, a marriage between two individuals creates a set of rights and obligations between the parties involved. These rights may be called as “conjugal rights”. CONJUGAL RIGHTS are rights which husband and wife have to each other’s society. So now we need to ask ourselves as to what exactly do we mean by the restitution of these conjugal rights? Restitution of Conjugal Rights under Personal Laws:
The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit. The texts of Hindu law also recognized the principle “let mutual fidelity continue until death”. Hindu law enjoined on the spouses to have the society of each other. According to sec.9 for restitution of conjugal rights 3 conditions must be satisfied: 1. The respondent has withdrawn from the society of the petitioner without any reasonable excuse. 2. The court is satisfied about the truth of the statement made in such petition and 3. There is no legal ground why the relief should not be granted.
There are several grounds of restituion of conjugal rights.They are: 1. Either spouse:
There should be valid marriage acc/to sec.5 of Hindu marriage act 1955 If either spouse having unsoundness of mind.
Suffering from mental disorder
Child marriage and many more grounds are there on which the marriage can be held invalid. b If the marriage is being valid proof then when either spouse withdraws from the society then the aggrieved party can go to the district court for the restitution of conjugal rights. c If the aggrieved party proofs himself/herself rightly then the court grants decree in his/her favour. CASE Parbia Ram vs. Thopali
Held: if the marriage isn’t valid then the decree of restitution of conjugal rights will not arise. CASE...