Restitution of conjugal rights means restoring the right of a spouse to live with the other. In every marriage it is implied that husband and wife both have legal right to cohabit and live together. If any spouse lives separately without any reasonable excuse and deprives the other from his (or her) company, the other spouse is deprived of his (her) legal conjugal right. Such other aggrieved spouse is then entitled to file a suit against the party who lives separately.
If the court finds that the spouse who is living separately without any reasonable justification, it shall pass order and compel him (her) to live together. Such a suit by the aggrieved party is called a suit for the restitution of conjugal rights.
The success or failure of a suit for restitution of conjugal rights depends on the fact whether the other spouses has any just cause for living separately or not. If a spouse lives separately due to some reasonable and just cause e.g. completing studies or due to transfer in service, the other spouse cannot compel him (her) to live together.
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The court then refuses to pass order for restitution of conjugal rights. It is for the court to decide whether, under the circumstances, a spouse has reasonable excuse for living separately or not. It is found that in a married life it is generally the wife who, under some compulsion, has to leave this husband and live separately.
And, generally husband files a suit for restitution of conjugal rights. The wife defends her separation from husband. Under Muslim law, a wife can take following defenses against husband’s claim for restitution of conjugal rights:
(1) False charge of adultery against wife by her husband.
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(2) The wife had demanded her prompt dower which had not been paid provided no consummation has taken place.
(3) Repudiation of marriage by wife by exercising ‘option of puberty’.
(4) Renunciation of Islam by husband or husband’s using objectionable words against the Prophet.
(5) The husband has been declared out caste.
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(6) Violation of a condition laid down in the marriage agreement, if any. However, such condition must be legal and must not be void.
(7) Physical or mental cruelty by husband.
It may be noted that the above-mentioned defences are only some of the instances of wife’s reasonable excuse for living separately. Under the Dissolution of Muslim Marriages Act, 1939, the scope of mental cruelty has now been widened.
Therefore, any ground which has been regarded as a ground for dissolution of marriage by wife under this Act or any such act of husband which may be regarded as ‘mental cruelty’ by husband may be a reasonable excuse for the wife to live separately.
