AP BJP State Vice President, AP Dharmika Cell Wing, and Senior advocate Hanumath Prasad about What is Restitution of conjugal rights? What is Judicial Separation? What is Legal separation without divorce? and What are the limitations of the Restitution of conjugal rights?

#AdvocateHanumathPrasad #HusbandWifeIssues #RightToStayTogether

In English law, restitution of conjugal rights was an action in the ecclesiastical courts and later in the Court for Divorce and Matrimonial Causes. It was one of the actions relating to marriage, over which the ecclesiastical courts formerly had jurisdiction.

This could be brought against a husband or wife who was guilty of "subtraction"; that is, living away from their spouse without a good reason. If the suit was successful, the married couple would be required to live together again.

In 1969 a Law Commission report recommended the abolition of the action, and it was abolished by the Matrimonial Proceedings and Property Act 1970.

English law was imported to many parts of the world through colonization, and so was the concept of restitution of conjugal rights, which continues to exist in law, in various forms, in some former British possessions, including India. In India, the concept has been subject to controversy, and was called by Khardekar (MP), at the time of the drafting of the Hindu Marriage Act, 1955 (which contains it), "uncouth, barbarous and vulgar". In 1984, the Supreme Court of India upheld the constitutionality of the restitution of conjugal rights, in Saroj Rani v Sudarshan Kumar Chadha (which found that the action of restitution of conjugal rights does not violate Article 14 or Article 21 of the Constitution, and is, therefore, a valid action). Human Rights Watch has criticized this concept as being a cause of violence and discrimination against women. Recently this law was challenged again in the Supreme Court post the Right to Privacy verdict by Ojaswa Pathak and Mayank Gupta, two students of Gujarat National Law University.

Restitution of Conjugal Rights - (Right to stay together)

If either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights.

The decree of restitution of conjugal rights cannot be executed by forcing the party who has withdrawn from the society from the other to stay with the person who institutes Petition for restitution. The decree can be executed only by attachment of the properties of the judgment debtor. The practice has shown that the decree of restitution is a paper decree.

However, if the decree of restitution of conjugal right is not honored for a period of more than one year, subsequent to the date of the decree, it becomes a ground for divorce.

Judicial Separation: Legal Separation without divorce

Either party to the marriage may present a petition on any of the grounds stated in the provisions for divorce, praying for a decree of judicial separation. A judicial separation is a legal way to stay separate from the spouse, without obtaining a decree of divorce. It also helps in cases to defend a petition for restitution of conjugal rights. A judicially separated spouse cannot be given a meaning to include a spouse merely living separately, and who has not obtained a decree for judicial separation.

In case, there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards, after the passing of the decree for judicial separation, it shall be a ground for a divorce

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