On marriage, it is the primary duty of the parties to live together for the performance of their marital obligations. This right to cohabit with each other is called the right to ‘consortium’. It is the right that husband and wife have to each other’s society, comfort and affection. The origin of the action seems to lie in the early law concept of husband having a quasi-proprietary right over the wife. It included his wife’s society as well as her services. With the passage of time, the concept of consortium assumed a distinct footing of mutuality. Conjugal rights cannot be enforced by the act of either party and a husband cannot seize and detain his wife by force. If a spouse makes a breach of this obligation without any justifiable cause, the other can go to the court for the restoration of his conjugal rights.
Section 22, of Chapter V of the Special Marriage Act, 1954, lays down the conditions on which a petition for restitution of conjugal rights would lie.
The following are the elements of the section:
This section corresponds to S. 9 of the Hindu Marriage Act 1955, S. 36 of the Parsi Marriage and Divorce Act 1869, S. 32 of the Divorce Act 1869 and S. 13 of the Matrimonial Causes Act 1965.
Where a spouse has withdrawn from the society of the other without reasonable cause, the aggrieved party may apply to the competent court for restoration of society and restitution of conjugal rights, on which the court will, in a proper case, make decree to that effect. A conjugal right is one vested in the spouse on marriage to live in a close society of each other for upholding the cause of matrimonial relations.
The word ‘society’ occurring in the section means the same thing as consortium or cohabitation, i.e., living together as husband and wife in the place called ‘matrimonial home’. So it is evident that withdrawal from society of the other would mean withdrawal from the matrimonial home by either spouse that would involve a total loss of consortium like desertion. Withdrawal from society involves two elements: animus and factum. This means that the withdrawing spouse has an intention to put the cohabitation to an end and secondly, mere intention to withdraw would not amount to withdrawal unless it is coupled with factum of separation on the part of withdrawing spouse.
Cohabitation does not necessarily mean that parties are living together under the same roof but there may be states of cohabitation where they see as much of each other as they can, and yet are not separated.
Kay v. Kay: A man may be cohabiting with his wife even if he is away on a visit or on business because the conjugal relationship is not determined in any shape or form thereby.
G v. G: A husband cannot be taken as having deserted his wife without reasonable cause because his work in life compels him to live away from her. Matrimonial Home
The principles of Shastric law were that the wife is bound to live with her husband and to submit herself to his authority. This rule of law that gave husband alone the right to establish a matrimonial home in preference to the wife was based on a custom, which reflected the condition of the age in which the custom was practiced. Moreover, the right of the husband to establish a matrimonial home is not a proposition of law, it is simply a proposition of ordinary good sense arising from the fact that husband is usually the bread earner and has to live near his work. In such circumstances it becomes quite natural that the husband should have the right for the choice of matrimonial home. The Constitution of India gives an equal status to both the sexes, thus both have an equal right to pursue their career. Now the casting vote as to the choice of matrimonial home is not with the husband or wife but it is a matter, which has to be decided amicably between them.
The question as to what amounts to withdrawal from society has come before our courts in several cases in an interesting manner: does the wife’s refusal to give up her job at the instance of the husband amount to withdrawal from the society of the husband? The question came for consideration before the Punjab High Court in several cases and it was answered in the affirmative. In the cases Tirath Kaur v. Kirpal Singh, Gaya Prasad v. Bhagwati, and Kailashwati v. Ayodhiya Prakash, the courts held that the husband has a right to decide the matrimonial home and the wife must resign her job and live with him. As opposed to this extreme opinion the other view, as held in S. Garg v. K. M. Garg, is that in the present scenario of the society the wife cannot be prevented from taking up employment and cannot be forced to reside in the same place her husband is living. Neither party has a casting vote and the matter must be settled by agreement between the parties, by a process of give and take and by reasonable accommodation.
Once the petitioner proves that the respondent has withdrawn from his society, the burden of proving that he/she has withdrawn with reasonable excuse would be on the respondent. A petition for restitution will fail if it established that the respondent has withdrawn from the society of the petitioner with a reasonable excuse for doing so.
Under the modern matrimonial law, it will amount to reasonable excuse or reasonable cause:
If there exists a ground on which, the respondent can claim any matrimonial relief. Thus if it is established that the petitioner has another wife (Parkash v. Parmeshwari) is guilty of cruelty (Bejoy v. Aloka),or is adulterous (Laxmi Malik v. Mayadhar Malik) the petition will fail. If the petitioner is guilty of any matrimonial misconduct, not amounting to ground for a matrimonial relief, yet sufficiently weighty and grave. If the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him.
The jurisdiction to entertain a petition for restitution of conjugal rights under the section rests with the district court. District court has been defined in S. 2(e) of the Act. It means the principle civil court of original jurisdiction and a city civil court where there is such court. The jurisdiction of a district court can be invoked by an aggrieved party if any of the following qualifications is fulfilled:
On passing of a decree of restitution of conjugal rights, the decree holder is required to execute the decree under Order. XXI, Rule. 32, CPC.