Restitution of Conjugal Rights and Judicial Separation.The terms Restitution of conjugal rights and judicial separation are terms referred to in the Hindu Marriage Act. The main purpose of this act was to codify the law relating to marriage of Hindus. Marriage is considered as a sacred tie of two souls in Indian society. It is a kind of irrevocable relationship between the husband and wife. However, the Hindu Marriage Act gives leverage to the bond to get separated peacefully. There are mainly two ways of performing the same. RESTITUTION OF CONJUGAL RIGHTS
The most fundamental purpose of marriage is that the spouses must live together and that both of them should by each other’s side eternally. If, therefore either of the spouse leaves other, the latter can approach the court of law praying for a Decree of Restitution of conjugal rights.
In this decree, the court orders the spouses to continue living together.
The word ‘conjugal rights’ broadly has two interpretations:-
(a) rights of spouses towards each other in society
(b) marital intercourse.
Now if either of them withdraws from the society of the other, then the aggrieved party can file for a decree of restitution of conjugal rights. It is usually a petition presented in the district court subject to respected jurisdiction. Now having the petition presented in the court and it being satisfied on the truth of the statements made in the respective petition (and if there is no ground on which the decree is not to be passed), it shall pass a decree for restitution of conjugal rights (section 9 of HMA).
Section 23 also comes in play as it imposes a duty on the court to duly enquire the facts and look into the insights of the case. Thus all bonafide documents are to be presented which claim the circumstances and the cohabitation between the spouses.
In the case of Timmins vs. Timmins (1953, 2 All E. R. 187), the court concluded that the husband was not guilty of cruelty and that his conduct was grave, which was justifiable for his wife leaving him. Therefore, the court in this matter did not entitle a decree of restitution of conjugal rights.
DECREE OF JUDICIAL SEPERATION
It is a grant by the court for the spouses to judicially live separately. If the court passes this decree, it is not obligatory for parties to cohabit anymore.
It does not however dissolve the matrimonial bond between the parties but it is equally true that certain rights and obligations that result out of the marriage are to be suspended as soon as the decree passes. Under HMA, a petition may be presented on the ground that cohabitation has not been resumed for past one year since the passing of the decree and the court shall consider the same.
A petition can be represented in the court on any of the grounds mentioned in section 13 of Hindu Marriage Act, 1955.
The court also has the power to revoke such a decree on an application presented by either parties only if it deems it to be just and reasonable by all means.
However it is pertinent to note that both the ways are discretionary in nature and the court is not bound to pass any decree just because any of the grounds is mentioned in the respective section. The court can also refuse the decree under section 10.
Hence, the two relieves given in HMA, 1955 proved to be quite effective in resolving the disputed and hence giving the spouses a fair chance to reconcile the relationship if they wish to.
Article by – Kritika Goyal
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