FAMILY LAW

Topic: - Restitution of Conjugal Rights and Judicial

Separation: A detail study

Class Teacher
MR SOURAV AGARWAL

NAME: ARKAPRAVA BHOWMIK

ROLL NO - 44
COURSE:LL.B. 3YEARS (1st SEMESTER)

INDIAN INSTITUTE OF LEGAL STUDIES

2016
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ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thanks to MR

SOURAV AGARWAL, Research Assistant in Law, Indian Institute of Legal Studies, for his

guidance, sound advice and affectionate attitude during the course of the study work.

There is no hesitation in saying that she molded raw clay into whatever we are through his

incessant efforts and keen interest shown throughout the academic pursuit. It is due to his patient

guidance that I have been able to complete the task.

I would also thank the Indian Institute of Legal Studies Library for the wealth of information

therein. I express my regards to the Library staff for cooperating and making available the books

for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the

project work.

Date:
_____________________
ARKAPRAVA BHOWMIK
LL.B (1st Semester) Roll No: 44
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TABLE OF CONTENTS
___________________________________________________________
Research Methodology...3 - 4
A. Aims and Objectives..3
B. Statement of Problem...3
C. Research Hypothesis..3
D. Research Questions....4
E. Methodology of Research...4
F. Scope and Limitations....4
G. Review of Literature....4
H. Mode of Citation..4

Table of Cases..5

Chapter 1- Introduction.6

Chapter 2- Restitution of Conjugal Right ..7-9

2.1- Historical Background 7

2.2- Meaning.8-9

Chapter 3 Constitutional Validity of Sec 9 of HMA 1955....10-15

Chapter 4 Judicial Separation 16

Chapter 5 Grounds available for Judicial Separation 17-18

Chapter 6 Conclusion 19

Bibliography 20

RESEARCH METHODOLOGY
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___________________________________________________________
A. AIMS AND OBJECTIVES
The aim of this paper is to analyze the core issues related to restitution of conjugal
rights and judicial separation with regards to the Hindu Marriage Act 1955.
Therefore, in this paper the main argument shall be with regard to the
constitutionality of restitution of conjugal rights under the Hindu Marriage
Act(1955) and also regarding Art. 14 and 21 of the constitution. This paper also
deals with the aspect of judicial separation and its distinction from divorce.

B. STATEMENT OF PROBLEM

There is a sense of ambiguity regarding the concept of restitution of conjugal

rights. The proper application of section 9 of the Hindu Marriage Act (1955) is also a matter
of debate. Question regarding its fairness and reasonability is also a matter of grave
concern. The difference between judicial separation and divorce is often overlooked. The
subtle issues that section 10 of the Hindu Marriage Act addresses which is different from
divorce is often misunderstood.

C. RESEARCH HYPOTHESIS
1. Restitution of conjugal rights does not violate the constitution of India.

2. The object of judicial separation seems to be to afford an opportunity to the parties to

reconcile their difference and to live together.

D. RESEARCH QUESTIONS

Whether the restitution of conjugal rights is in violation of article 14 and article 21

of the Constitution of India?

Is restitution of Conjugal Rights just, fair and reasonable towards the society?

What is the difference between judicial separation and divorce?

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E. METHODOLOGY OF RESEARCH

Methodology implies more than simply the methods the researcher used to collect data. It is
often necessary to include a consideration of the concepts and theories which underlie the
methods. The methodology opted for the study on the topic is Analytical and Doctrinal. Doctrinal
research in law field indicates arranging, ordering and analysis of the legal structure, legal frame
work and case laws by extensive surveying of legal literature but without any field work.

F. SCOPE AND LIMITATIONS

The scope of the study refers to the parameters under which the study is operating. An extensive
attempt has been made in order to search for the quest with regard to the topic under this paper.
Though there is ample scope to highlight on the principle of good faith and duty of disclosure
according to different Statutes, but the scope of research work is limited to a particular area in
search of answer. Therefore, the researcher confines to the materials which are available and
widely accepted.

G. REVIEW OF LITERATURE
The researcher while writing this project has taken recourse to various primary and secondary
sources. Primary sources would include various laws. Secondary sources would include books
and articles, reports and websites.

H. MODE OF CITATION
A Blue Book system of citation has been adopted throughout the project.

TABLE OF CASES
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1. Harvinder Kaur vs Harmander Singh Choudhry ,AIR 1984 DEL

66

2. Satish Chandra v. Union of India ,AIR 1952 SC 250

3. Chandra v. Suresh, 1971 Delhi 208

4. Ram Chandra v. Adarsh ,1987 Del 99.

5. Kuldip Kumar Dogra v. Monica , 2010 HP 58.

6. T.Sareetha v. T. Venkatasubbaiah,AIR 1983 AP 356

7. Saroj Rani v. Sudharshan, 1984 AIR 1562

8. Ashoke v. Shabnam ,1989 Del 121

CHAPTER 1

INTRODUCTION

Marriage enjoins some rights and obligations on both the spouses. These rights and
obligations are equal in some respects to both the spouses but unequal in some other
respects. One of these obligations is that both spouses will cohabit with each other. It
implies that the parties to marriage will live together as husband and wife. It is one of the
express conditions in the nuptial vow of the Hindus that each party is to become the
associate of the other. According to Manu, Let mutual fidelity continue till death. Let a man
and woman united by marriage, constantly beware, lest at any time disunited they violate
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their mutual fidelity. And the sages denounced the desertion or neglect of either party by
the other without just cause as an act punishable in this world and in the next.
However, an agreement on the part of the husband entered into at the time of the marriage
that he will not be at liberty to remove his wife from her parents abode to his own abode
has been held to be void as being contrary to Hindu law as well as to public policy. So far the
duties of the husband and the wife with respect to each others person are reciprocal. As
regards rights, perfect equality in between the married couple has so far not been allowed
by any system of law. If there be inequality, it has always been in favour of man. To use the
language of Bentham: In his hands the power maintains itself. Give the authority to the
woman, and every moment a revolt would break out on the part of her husband. This
inequality was originally very great, but the tendency of society has been to reduce it as far
as possible. According to Banerjee the Hindu law In respect of this inequality partakes to
some extent, no doubt, of the character of other archaic systems, but on the whole, it is far
more equitable towards the female sex than most o f those systems.
Restitution of Conjugal Rights is a remedy, which basically means restoration or
reinstatement of ones marital rights or privileges (like, comfort and consortium of one
another) which the marriage or the marital bond entitles him to. There is a uniform
provision regarding Restitution of conjugal Rights in all of the personal laws. Section 9 of
the Hindu Marriage Act, 1955 makes this remedy available to the Hindus.

CHAPTER 2 - RESTITUTION OF CONJUGAL RIGHTS

2.1 HISTORICAL BACKGROUND

The remedy of Restitution of Conjugal Right [1] is a new

notion in Indian matrimonial jurisprudence that finds its origin in the Jewish laws. The
remedy was unknown to Hindu law till the British introduced it in the name of social
reforms. In fact it is the only matrimonial remedy which was made available under the
British rule to all communities in India under the general law [2]. After independence this
remedy found place in the Hindu Marriage Act, 1955. But even as the Hindu Marriage Act
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was being passed in the Parliament, there were voices of scepticism regarding the efficacy
of the remedy. Mr. Khardekar had opposed the remedy, saying, to say the least this
particular cause is uncouth, barbarous and vulgar. That the government should be abettors
in a form of legalized rape is something very shocking. Bromley has also opposed this
concept in his book.[3] Sir J.Hannen in Russell v. Russell[4] also vehemently opposed the
remedy saying, I have not once known a restitution petition to be genuine, that these were
merely a convenient device either to enforce a money demand or to obtain divorce.Some
scholars have even expressed the view that the remedy should be abolished. Unfortunately
all pleas to abolish the remedy have fallen on deaf ears. The inherent incapacity of the
remedy has been manifested numerous times in various forms yet we are continuing with
this archaic remedy even though it has been abolished in England by the Law Reforms
(Miscellaneous Provisions) Act, 1947.

2.2 MEANING

Restitution means restoring to the owner what has been lost. Decree of restitution of
conjugal rights is an order of the Court, which says that the spouses must continue to live

1. Section 9, Hindu Marriage Act, 1955

2. Paras Diwan, Law of Marriage and Divorce, 3rd edn., 1999.

3. Raj Kumari Agarawala, Restitution of Conjugal Rights: A Plea for the Abolition of the
Remedy, J.I.L.I p. 256,1970)

4. (1897) AC 395.

together or it directs the defaulting party for the restoration of marital duties and to
cohabit with the other spouse. The restitution of conjugal rights means that is one of the
parties of marriage leaves the other; the latter is entitled to compel the former to live with
him or her as the case may be. Decree of restitution of conjugal rights could be passed in
case of valid marriages only.
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The Hindu marriage Act 1955 gives the remedy of restitution of conjugal rights under
section 9. Section 9 of Hindu Marriage Act reads that when either the husband or the wife
has, without reasonable excuse, withdrawn from the society of the other, the aggrieved
party may apply for restitution of conjugal rights. The aggrieved party needs to file a
petition to the district court. Burden of proof lies on the petitioner who needs to prove that
the respondent has withdrawn from his or her society. However, there are three essential
conditions for granting relief under section 9 of the Hindu Marriage Act:

Firstly, one party must have withdrawn from the society of the other
Secondly, the withdrawal must be without any reasonable excuse
Thirdly, the aggrieved party applies for the restitution of conjugal rights

In Ram Chandra v. Adarsh, the wife went to parents home for delivery.But the husband did
not care to go to see his wife and child even when the wife underwent caesarean operation
though the nursing home was very near to his house. He did not go to his in-laws house to
fetch her. This was held to be reasonable excuse.

A decree of restitution of conjugal rights implies that the guilty party is ordered to live with
the aggrieved party. Restitution of conjugal rights is the only remedy which could be used
by the deserted spouse against the other. A husband or wife can file a petition for
restoration of their rights to cohabit with the other spouse, but in reality the execution of
such decree is very difficult. The court, though is competent to pass a decree of restitution
of conjugal rights, but it is powerless to have its specific performance under any law. The
decree of restitution of conjugal rights can be enforced by the attachment of property, and
after one year of such non-compliance a petition for divorce may be filed; but under no
circumstances the court can force the erring spouse to cohabit. There are also a few
reasonable grounds on which petition for restitution of conjugal rights can be rejected.
These are

If the respondent has a ground on which he or she can claim any matrimonial relief;
If the petitioner is guilty of any matrimonial misconduct,
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If the petitioner is guilty of such an act, omission or conduct which makes it

impossible for the respondent to live with him; for instance, husbands neglect of his wife or
constant demand for dowry, etc.

In Ashoke v. Shabnam on account of constant demands of dowry and her harressment on

that account , the wife was compelled to leave her matrimonial home. It was held that this
amounted to reasonable cause and thus wife was not in dissertion.

CHAPTER 3

CONSTITUTIONAL VALIDITY OF SECTION 9 OF THE HINDU MARRIAGE ACT (1955)

The constitutional validity of the provision for restitution of conjugal rights has time and
again been questioned and challenged. The earliest being in 1983 before the Andhra
Pradesh High Court in T.Sareetha v. T. Venkatasubbaiah [1]where the Honble High Court held
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that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v
HarminderSingh [2] though had non-conforming views. Ultimately Supreme Court in Saroj
Rani v. Sudharshan gave a judgment which was in line with the Delhi High Court views and
upheld the constitutional validity of the Section 9 of the Hindu Marriage Act, 1955 and
over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah. It may be said that the two
cases T.Sareetha v. T.Venkatasubbaiah and SarojRani v. Sudharshan [3] are unambiguously the
most important cases in the Indian spectrum of stare devises dealing with the remedy of
restitution of conjugal rights. The importance of such cases must, likewise, not be
undermined. Sareetha and Saroj Rani bring out the core arguments offered on either side to
the issue of restitution of conjugal rights. The major grounds for challenge to the
constitutionality of S.9 of the Act are as in violation of Articles 14 and 21 of the Indian
Constitution. Even though Sareetha has been the first case where the Constitutionality of
S.9 of the Act has been challenged, it is pertinent to point out the observations of Lord
Herschell in Russell v Russell where he noted the barbarity of such remedy of forced
cohabitation between couple. Such observation is the touchstone against which all
arguments in favour of the unconstitutionality of S.9 may be placed.

Right to Equality and Restitution of Conjugal Rights:

The Indian society is often regarded as one with wide spread discrimination based on
gender. More often than not, there have been instances where women have been subdued
to violence and injustice because of their gender. It is to be noted that there is a inequality

1. AIR 1963 AP 356.

2. AIR 1984 Del 66.

3. Ibid. at 22.

in the Indian society with regard to conjugal rights because, a suit for restitution by the
wife is rare in the Indian Society. This fact has been affirmed by Gupte[1] who was quoted
by the Court in T. Sareetha v. T. Venkata Subbaiah. It is only the educational, economic and
social factors which have made the life of women deplorable in our Country. In our social
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reality, this matrimonial remedy of restitution of conjugal rights if found used almost
exclusively by the husband and rarely resorted to by the wife[2].

According to article 14, The state shall not deny to any person equality before the law or
the equal protection of laws within the territory of India The guiding principle is that all
persons and things similarly circumstanced shall be treated alike both in privileges
conferred and liabilities imposed[3]. All equals must be treated equally amongst
themselves and unequals unequally. It must be realized that Guptes quote was concerning
the old Hindu law and the provisions of the Hindu Marriage Act, 1955 and other personals
do not have any provision of inequality existent in them. By amending act 44 of 1964,
either party to a marriage is allowed to present a petition on the grounds given in Section
9 and Section 13(a). The concept of gender discrimination has not been incorporated in the
Hindu Marriage Act and all are treated as equals under this section. It is opined by the
author that there is no classification of sexes in Section 9 and all equals have been treated
equally in this area. There is complete equality of sexes hare and equal protection of the
laws. Section 9 cannot be struck down as violative of Article 14 of the Constitution. The
object of the restitution decree is to bring about cohabitation between the estranged
parties. So that they can live together in the matrimonial home in amity. That is the primary
purpose of Section 9 of the H.M.A. Cohabitation has been defined in these words:
Cohabitation does not necessarily depend upon whether there is sexual intercourse
between the husband and the wife. Cohabitation means living together as husband and
wife.

1. Gupte, Hindu law in British India, 2nd ed. 1947, p.99.

2. Supra. n. 18.

3. Satish Chandra v. Union of India, AIR 1953 SC 250.

The Decision in T. Sareetha v. Venkatasubbaiah Case:

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The question of constitutional validity of Sec.9 for the first time came up in came up in the
case of T Sareeta v Venkatasubbiah where the husband had himself asked the Court to pass
a decree of restitution of conjugal rights and after completion of a year he filed a petition
for divorce on the ground that the decree has not been complied to. The wife challenged the
constitutional validity of S.9 of the Act. Justice Chaudhary of the Andhra Pradesh High Court
held S. 9 to be savage and barbarous remedy violating the right to privacy and human
dignity guaranteed by Article 21 of the Constitution, hence void. Chaudhary J. stated that
section 9 imposes sexual cohabitation between unwilling, opposite sexual partners. He
called it forced sex, coerced sex and forcible marital intercourse. He went on to hold
that the state interference in personal rights destroyed the sexual autonomy and
reproductive autonomy of the individual. A wife who is keeping away from her husband,
because of permanent or temporary arrangement, cannot be forced, without violating her
right to privacy, to bear a child by her husband. A large number of English and American
decisions have been cited in support of this view[1]. This decision is the first of its kind to
take this view. The decree for restitution does nothing of the kind. Under section 9 of the
Hindu Marriage Act, 1955, the Court has power to make a decree of restitution of conjugal
rights which is the remedy available to enforce the return of a spouse who has withdrawn
from cohabitation. The decree, if granted, orders the respondent to return within a period
of one year to the aggrieved party. This period is specified in section 13(l-A)(ii) of the Act.
This remedy is aimed at preserving the marriage and not at disrupting it as in the case of
divorce or judicial separation.

The Right to Life and Restitution of Conjugal Rights:

The Right to Life of a person is regarded as the most important aspect of a persons

1. Jackson v. Jackson, (1924) Probate 19 (2) : Forster v. Forster, (1790) I Hag. Con. 144
(3) : Weatherley v.

Wentherley, (1946) 2 All E. R. 6.

fundamental rights. It is stated in the Constitution as follows No person shall be deprived

of his life or personal liberty except according to the procedure established by law. Article
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21, though couched in the negative language, confers on every person the fundamental
right to life and personal liberty. These rights have been given a paramount position by the
Supreme Court. It is argued that Section 9 of the Hindu Marriage Act, 1955 that provides for
the restitution of conjugal rights, violates the right to privacy of an individual. Section 9
denied the spouse his/her free choice whether, when and how her/his body was to become
the vehicle for the peroration of another human being. A decree for restitution of conjugal
rights deprived, according to the learned Judge in Sareethas case a woman of control over
her choice as and when any by whom the various parts of her body should be allowed to be
sensed. Our Constitution embraces the right to privacy and human dignity and any right to
privacy must encompass and protect the personal intimacies of the home, the family,
marriage, motherhood, procreation and child bearing. It is to be noted that the restitution
of conjugal rights, unlike specific performance, is only wilful in nature and the courts must
treat it only as an inducement in times to come. The institution of marriage has been
inherent in the Indian Society and all must be done to protect it. Furthermore, if a spouse
does not wish to stay with his/her partner then he may make use of remedies such as
judicial separation and divorce. Leaving a partner without a reasonable excuse cannot be
justified. This is against the concepts of justice, equity and good conscience which are the
basis for laws made in our Country. Thus it must be observed that Section 9 of the Hindu
Marriage Act is not violative of Article 21 of the Indian Constitution.

Right to Freedom and Restitution of Conjugal Rights:

It is believed that the restitution of Conjugal rights violates the freedom of expression,
association and other freedoms guaranteed under Article 19 of the Constitution. Article 19
(1) of the Indian Constitution prescribes for the freedom to form associations and reside in
any area in India , the freedom to practice any profession and the freedom of free speech
and expression. But this right is not an absolute right. There are restrictions mentioned in
the form of Article 19(6) which are in the form of public order, morality and health. It may
be believed that to a certain extent, that the restitution of conjugal rights concept under
Section 9 of the Hindu Marriage Act, 1955 is in violation of Article 19(1)(c) of the Indian
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Constitution. This is may be because by this decree, a wife is compelled to stay with his
husband or vice-versa against her will.

In Huhharam v. Misri Bai , the wife complained to the Court that her father-in-law has an
evil eye on her and her husband ill-treated her in response to the husbands claim for a
restitution decree the court granted it in the husbands favour. This is a perfect example of a
forced union of spouses which is contrary to the right guaranteed under Article 19(1) (c).
This does not satisfy any reasonable restriction mentioned in article 19(6) in the form of
public order, morality and health. Thus it is contended that the restitution of conjugal rights
violates this Article.

The issue came up once more before the Delhi High Court in Harvinder Kaur v.
HarmendarSingh where the constitutionality of Section 9 was upheld and the judgment in
Sareetha overruled. The court justified the alleged violations of the Equality Protection
and the Right to Life and Liberty by giving a more wholesome definition to the aspect of
Restitution of Conjugal Rights. The purpose of restitution of conjugal rights was
emphasized as providing impetus to the undo any damage done to their marriage to
couples whove withdrawn from the societies of each other. The concept of marriage was
emphasized as to include the ideas of both contract and sacrament and therefore, it was
argued

that such special obligations demanded that the institution of marriage should not be easily
amenable to break down. Sexual intercourse was not the summum bonnum of a marriage
and was only one of the elements. The decision of the Honble High Court was upheld by the
Supreme Court in the case of Saroj Rani and this case effectively overruled the precedent
set by J.Chaudhary in Sareetha.

The Decision in Saroj rani v. Sudarshan Kumar:

In this case, the wife petitioned for restitution of conjugal rights. She was married in 1975
and had given birth to two daughters during her brief married life. She was turned out of
her matrimonial house in 1977 and subsequently filed a petition to which she was granted
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an interim maintenance by the Court. The husband later filed a consent memo for the
passing of the decree and the decree of restitution of conjugal rights was accordingly
passed in favour of the wife. One year later, the husband applied for a divorce under Section
13 (1-A) of the Hindu Marriage Act, 1955 on the ground that he and his wife had lived
separately during the one year period. The question of cohabitation arose where in the
spouses stayed together for a period of two days after the decree was passed. It was
submitted that the ground for divorce was unjustified and the husband was getting away
with his wrongs. This argument was based on the principles of natural law, i.e. justice,
equity and good conscience. It was further argued that the concerned section, that is
Section 9 of the Hindu Marriage Act violated Articles 14 and 21 of the Indian Constitution.
The Honble Court under Justice Sabyasachi Mukhatji observed:

We are unable to accept the position that Section 9 of the Hindu Marriage Act is violative of
Art. 14 and 21 of the Indian Constitution. Hindu Marriage is a sacrament and the object of
section 9 is to offer an inducement for the husband and wife to live together in harmony. If
such differences may arise as in this case, it may be a valid ground for divorce after a period
of one year. Hence Section 9s validity is upheld.

Thus the Court granted the divorce but at the same time understanding the situation of the
wife and daughters, ordered the husband to pay a prescribed maintenance to the wife until
she remarries. The Honourable Court has thus considered the interests of both parties and
maintained harmony in this area.
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CHAPTER 4 JUDICIAL SEPARATION

3.1 MEANING

Section 10 of the Hindu Marriage Act, 1955, provides for Judicial Separation. According to
Sec 10 of the Act Either party to a marriage, whether solemnized before or after the
commencement of this Act, may present a petition praying for a decree for judicial
separation on any of the grounds specified in sub-section (1) of Section 13, and in the case
of a wife also on any of the grounds might have been presented.

Judicial separation is an instrument devised under law to afford some time for
introspection to both the parties to a troubled marriage. Law allows an opportunity to both
the husband and the wife to think about the continuance of their relationship while at the
same time directing them to live separate, thus allowing them the much needed space and
independence to choose their path.

Judicial separation is a sort of a last resort before the actual legal break up of
marriage i.e. divorce. The reason for the presence of such a provision under Hindu
Marriage Act is the anxiety of the legislature that the tensions and wear and tear of every
day life and the strain of living together do not result in abrupt break up of a marital
relationship. There is no effect of a decree for judicial separation on the subsistence and
continuance of the legal relationship of marriage as such between the parties. The effect
however is on their co-habitation. Once a decree for judicial separation is passed, a
husband or a wife, whosoever has approached the court, is under no obligation to live with
his / her spouse .

CHAPTER 5 GROUNDS AVALIABLE UNDER JUDICIAL

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SEPARATION

The following are the grounds available to both husband and wife for obtaining a decree of
Judicial Separation
1) Adultery: After the solemnization of the marriage, had sexual intercourse with any
person other than his or her spouse.

2) Cruelty: Treated the petitioner with such cruelty as to cause a reasonable apprehension
in the mind of the petitioner that it will be harmful or injurious for the petitioner to live
with the other party.

3) Desertion: Deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition.

4) Conversion: Ceased to be a Hindu by converting to other religion.

5) Insanity: Continuously of unsound mind or insanity for a period of not less than two
years immediately preceding the presentation of the petition

6) Leprosy: For a period of not less than one year immediately preceding the presentation
of the petition, been suffering from a virulent form of leprosy.

7) Venereal Disease: Immediately before the presentation of the petition, been suffering
from venereal disease in a communicable form, the disease not having been contracted
from the petitioner; or

8) Renunciation of the world: Renounced the world by entering any religious order

9) Not being heard for seven years: Not been heard of as being alive for a period of seven
years

The following grounds are available for the wife over and above the 9 grounds stated above
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1) Husband is having more than one wife.

2) Husband is guilty of Sodomy, bestiality or rape.

The effect of the decree is that certain mutual rights and obligations arising from marriage
are put under suspension. The main purpose behind filing the petition for Judicial
separation is to make interim financial arrangements for two of them, such as deciding
which one will possess which property, and which one of them shall pay the other
temporary financial support etc.

Where a decree for judicial separation has been passed, it shall no longer be obligatory for
the petitioner to cohabit with the respondent, but the court may, on the application by
petition of either party and on being satisfied of the truth of the statement made in such
petition, rescind the decree if it considers it just and reasonable to do so.

Judicial or legal separation permits the parties to a marriage to live apart. It is a relief short
of actual dissolution of marriage. So long as the decree is in force the parties to the
marriage are permitted to live apart and it shall no longer be obligatory for either party to
cohabit with the other. The object of this provision seems to be to afford an opportunity to
the parties to reconcile their difference and to live together. If the parties do not cohabit for
a period of one year or upwards after a decree for judicial separation was passed, either
party to the marriage can claim dissolution of the marriage.

CONCLUSION
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It is thus understood from what has been written above that the concept of Restitution of
Conjugal Rights has left enough ambiguity as to whether it is in violation of any of the
Fundamental rights guaranteed under part III of the Indian Constitution. It can be noticed
that this provision is violative of articles 19 and 21 of the Constitution and not violative of
other articles. After Sareetha & Saroj Ranis cases, the issue of constitutional validity has
taken a new dimension. Today, one views this as a highly volatile area where there is a clash
between personal laws and fundamental rights altogether. As mentioned earlier, personal
laws do not come under the ambit of Constitutional Review. Sometimes it may clash but not
necessarily undermine the importance of any Constitutional provision.
Restitution of Conjugal Rights is a concept, which had great significance at the time, when
it had evolved. But, with the changing times and changing social scenario it has lost its
significance. Though this remedy is based on a noble cause, its consequences are far more
detrimental and fail to bring about the desired effect in most of the cases, statistically. The
instances of its misuse are increasing rapidly and its redundancy too. Despite the Supreme
Court ruling, it is observed that the provision does violate the constitutional provisions of
Article 14,19 and 21. Such a provision which is incompatible with changing times, is
detrimental and obsolete, should be done away with and novel ideas for reconciliation
which are effective in its execution as suggested, should be brought about. By suggesting
that the remedy should be done away with, it
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BIBLIOGRAPHY

A. PRIMARY SOURCES

I. STATUTES:

i. The Hindu Marriage Act 1955

ii. Article 19 of the Indian Constitution

iii. Article 22 of the Indian Constitution

B. SECONDARY SOURCES

I. BOOKS

- Dr Paras Diwan , Modern Hindu Law, Allhabad Law Agency 22 nd edition (Reprint
2015)
- H.K. Saharay , Law of Marriage and Divorce, Eastern Law House,2007

II. WEBSITES

- http://www.legalserviceindia.com/articles/abol.htm

- https://www.kaanoon.com/indian-law/restitution-of-conjugal-rights-in-hindu-
marriage-act/

- http://www.webindia123.com/law/family_law/hindu_law/restitution_of_conjugal
_rights.htm