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Conjugal Rights

Conjugal Rights

Conjugal Rights

The Oxford English Dictionary defines ‘Conjugal’ as “Relating to marriage or the relationship between a married couple.” The provisions for restitution of conjugal rights takes place when the husband or wife withdraws from the society of the other without sufficient cause for the same. In simpler terms, conjugal right is the entitlement of a person to live with his/her spouse. This entitlement can be exercised by the aggrieved party (the husband or the wife) by issuing a petition to the district court pleading for the restitution of conjugal rights. If the court is satisfied with the validity of the statements expressed in the petition, it may choose to decree the restitution of conjugal rights. This article looks at the concept of conjugal rights in detail.

Qualifying Criteria

A petition for the restitution of conjugal rights is generally entertained on the basis of the following grounds:

  • The marriage was valid.
  • The spouses are not staying with each other.
  • The withdrawal of the party from the other is not backed by a sufficient cause.
  • The petitioner has a bona fide desire to live with the spouse.

Grounds for Rejection

A petition for the restitution of conjugal rights would be rejected on account of the following grounds:

  • If the respondent is eligible for any matrimonial relief.
  • If the petitioner makes a confession of any marital misconduct.
  • If the actions of the petitioner aren’t conducive for a marital relationship.
  • If the couple needs to stay separately for the purpose of employment.

Conjugal Rights vs Divorce

The intermingling of a petition for restitution of conjugal rights with that of divorce is still under debate. While some jurisdictional powers opine that a petition for conjugal rights can be supported with an alternative prayer for divorce, the likes of others feel that the prayers concerning conjugal rights and divorce are of a contrasting nature, and hence can’t be made together. Moreover, the general consensus is that the petitions are mutually destructive of each other as conjugal rights is an opportunity to be reunited with one’s spouse, in sharp contrast to the laws of divorce. However, the marriage laws are devoid of any concrete ruling for this purpose.

Judicial Separation

Judicial separation could be sought by either of the parties if they do not wish to stay with each other and is unwilling to exercise the option of a divorce.  The provision enables the parties to remain alienated from each other without affecting the legality of the marriage. In this respect, it also facilitates the defence of a petition for restitution of conjugal rights.

The Hindu Marriage Act facilitates the provision of judicial separation to prevent any abrupt cases of divorce. If the concerned parties continue their separation for a period of one year or more, it qualifies as a ground for divorce. The following are some of the valid grounds for the enactment of this provision:

•    Any instance of adultery towards the spouse

•    Any instance of cruelty towards the spouse.

•    Any instance of desertion of the spouse.

•    Attempt to convert the spouse into another religion forcibly.

•    Any of the parties is suffering from a virulent and incurable form of leprosy.

•    Any of the parties is suffering from a venereal disease which is communicable.

The insanity of a spouse

•    Enrollment of a spouse into any religious order.

•    The continued absence of a spouse for a period of seven years.

•    Where a husband opts for a remarriage.

•    Rape, sodomy or bestiality by the husband.

•    Pre-mature marriage of the couple (subject to conditions).

Rights of Claiming Maintenance

Section 25 of the Hindu Marriage Act entitles the wife to claim maintenance under Section 25 of the Hindu Marriage Act, which is applicable to the provision of judicial separation. If the husband fails to meet this obligation, the court may seek the attachment of the properties of the husband.