The matrimonial remedy of restitution of conjugal rights was made available to all the communities, including the Muslims, at an early period of British rule in India. The earliest Privy Council decision under Muslim law goes back to the 1867.
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The remedy is available in modern India by a suit of restitution of conjugal rights in the lowest civil court. What is most remarkable about this remedy is that most textbook writers discuss it as if the remedy is available to the husband alone and not to the wife.
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The reason seems to this that in most of the cases the suits for restitution of conjugal rights have been filed by the husband. There seems to be another reason also: the husband can frustrate the wife’s petition for restitution of conjugal rights at any time by pronouncing divorce on her.
The remedy is available to both the parties. Thus, according to Tyabji, “Where either the husband or wife has, without lawful ground, withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, and may put either party on terms securing to the other the enjoyment of his or her legal rights”.
The proposition of law thus formulated would be more precise if we substitute the words “without reasonable cause” for “without lawful ground”. The “reasonable excuse” or “reasonable cause” has a well established meaning under English law, the Hindu Marriage Act and the Special Marriage Act, and, it is submitted that there is no reason why the same meaning should not be ascribed, or the same defences should not be available to the defendant under Muslim law.
In addition to these defences, some more may be available under Muslim law. Thus, where a ground for divorce is available to the wife, or where the marriage is void or irregular, the husband’s petition for restitution should not succeed.
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Although there is nothing like grounds of divorce available to the husband it is submitted that the husband has the right to resist the wife’s suit for restitution of conjugal rights on the same grounds on which the wife can resist the husband’s suit.
The defences that have been valid against a suit for restitution of conjugal rights may be summarized. They are:
(i) Cruelty of the defendant. It seems that not merely physical cruelty but legal cruelty in its wider connotation, including all the instances of cruelty stated in clause (vii) of S. 2, Dissolution of Muslim Marriage Act, 1939, is included under the definition of cruelty. Thus, in a husband’s petition for restitution of conjugal rights, the court held that cruelty of a character that renders it unsafe for the wife to live with the husband is a valid defence.
The court further observed: It may be, that gross failure by the husband of the performance of the obligation, which the marriage contract imposes on him for the benefit of the wife might, if properly proved, afford good ground for refusing to him the assistance of the court”. Actual violence, resulting in an injury to life, limb or health or causing a reasonable apprehension thereof is obviously cruelty.
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Institution of criminal cases against the wife and her relatives and their vigorous pursuit by the husband amounts to cruelty and husband is not entitled to a decree for restitution of conjugal right. Any matrimonial misconduct of the husband though not amounting to a ground for a matrimonial relief, may also constitute a valid defence.
If the husband keeps a concubine in the same house in which his wife lives, resulting in quarrels between the two, it amounts to cruelty. In Itwari v. Asghari, one A took a second wife, as a consequence of which his first wife refused to live with him.
On A’s petition for restitution of conjugal rights, the court held that the very act of taking a second wife constitutes cruelty since Muslim law enforced in India considers “polygamy as an institution to be tolerated but not encouraged”.
The court further added that today the onus is on the husband to prove that his taking of second wife has not caused an insult or cruelty to his first wife, and in the absence of cogent explanation “the court will presume, under the modern conditions, that the action, of the husband in taking a second wife involved cruelty to the first”. If the husband accuses his wife of unchastity, adultery or immorality, it amounts to cruelty.
(ii) When the marriage is void, irregular, or has been avoided, in the exercise of the option of puberty, or when the marriage has been validly repudiated, the suit for restitution of conjugal rights will fail. Similarly, where sexual intercourse becomes improper, such as after lian or zihar, restitution of conjugal rights cannot be granted.
(iii) If the plaintiff is guilty of apostasy, the suit for restitution will not succeed.
(iv) Where the wife is living separate from the husband on account of non-payment of prompt dower, restitution of conjugal rights cannot be granted.
(v) A valid separation agreement is a good defence to a suit for restitution of conjugal rights.
(vi) When the suit for restitution of conjugal rights is not bona fide, and is filed to serve some ulterior motive, such as taking possession of wife’s property, the restitution of conjugal rights cannot be decreed.
(vii) The court may also refuse to pass a decree for restitution of conjugal right if it feels that it would be just and reasonable to do or that it would be inequitable to pass a decree. Venkataramiah, J. very pertinently, and, it is submitted, rightly observed: “It has to be borne in mind that the decision in a suit for restitution of conjugal rights does not entirely depend upon the right of the husband.
The court should also consider whether it would make it equitable for it to compel the wife to live with her husband. Our notions of law in that regard have to be altered in such a way as to bring them in conformity with the modern social conditions”.
There is some ancient authority for the view that the court may order a husband to be attentive to his wife; and where he has more wives than one, to be just and equitable to all of them. It is submitted that whether courts will do so in modern India is doubtful, since courts have no means to enforce such orders.
In Jani v. M.D. Khan, a full Bench of the Jammu and Kashmir High Court took the view that a husband was living as Khana damad and the wife refused to cohabit with him in her father’s house, for no fault of his, the husband’s suit for restitution of conjugal rights will be decreed.
In conclusion, we may quote the following observations of Vaidya J. of the Bombay High Court that remedy of restitution of conjugal rights ordering an unwilling wife to go to her husband “is a relic of ancient times when slavery or quasi-slavery was regarded as natural”.
This barbarous remedy should be sparingly awarded, “particularly after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike” With this observation the present writer is in full agreement.
It is submitted that in modern matrimonial law, the remedy of restitution has no place. It has been abolished in most countries, including England, and there seems to be no reason why we should retain it in the personal law of any Indian community.
