Meaning of Conjugal rights
Marriage under all the matrimonial laws is the union of two individuals imposing on each other certain marital duties and obligation to be followed. The necessary implication of marriage is to live together. So, the sexual rights or privileges implied by, and involved in, the marriage relationship; the right to sexual intercourse between husband and wife is known as conjugal rights that the spouses have.
The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit.
Rights available in case of the denial of conjugal rights to the spouse
So, if after the solemnization of the marriage, either of the spouses without any reasonable reason ‘withdraws from the society’ of the other, then the aggrieved party has the right to file petition for restitution of conjugal right in the matrimonial court.
Withdrawal from the society means:
- Withdrawal from sexual intercourse.
- Non-cooperation in the performance of marital obligation.
- Intention to abandon indefinitely.
- Cessation of cohabitation voluntarily.
Where the court is satisfied with the statements made and there is no legal bar to such decree, then the petition may be granted.
The Case Procedure when a decree of restitution of conjugal rights is filed
Legal Provisions on Restitution of Conjugal Rights
- S.9 of Hindu Marriage Act, 1955
- S.22 of Special Marriage Act. 1954
- S.32 of Indian Divorce Act, 1869
- S.36 of The Parsi Marriage and Divorce Act, 1936
Under what circumstances is the wife’s withdrawal from the society of the husband justified?
- When husband remarries.
- When the conduct of the husband makes it impossible for the wife to live with him.
Is there any effect of Prenuptial agreement?
Prenuptial Agreement are the is a agreement filed by the husband and wife before marriage stating the distribution of assets, liabilities and issues relating custody, if divorce takes place in future. These agreements in India are not enforceable.
Will wife be liable for maintenance?-What so ever the case may be the wife will be liable to get maintenance from her husband.
The court can pass a decree for restitution of conjugal rights and order the other spouse to cohabit with the aggrieved spouse. Under the Indian law a decree of restitution of conjugal rights can be executed by attachment of the respondent’s property.So the restitution of conjugal rights remedy tries in promoting reconciliation between the parties and maintenance of matrimonial. It tries to protect the society from denigrating. But the final decision is that of the parties whether to obey the decree of restitution of conjugal rights and to continue with the matrimony or not.
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