As Shown in Thappad ‘Restitution Of Conjugal Rights’ Can Command Wife To Return To Marital Home!

The Thappad trailer begins with Taapsee Pannu hearing: 'Restitution of Conjugal Rights, a legal notice to return to your husband's home.' Her consent is not asked. Isn't it time we bid goodbye to this outdated provision of law?

The Thappad trailer begins with Taapsee Pannu hearing: ‘Restitution of Conjugal Rights, a legal notice to return to your husband’s home.’ Her consent is not asked. Isn’t it time we bid goodbye to this outdated provision of law?

Under Restitution of Conjugal Rights, either partner who has left the marriage, can be asked by the court to return to the marital home.

The mention of Restitution of Conjugal Rights brings to mind the case of Sareetha, a popular yesteryear actress from the south. She had challenged the order for restitution obtained by her husband! We had discussed this case in great detail in law college…

Should Restitution of Conjugal Rights exist in an equal society?

In the Sareetha case, the judgement passed by the Andhra Pradesh High Court in 1983 is considered a landmark judgement. The court held that the provision of restitution “violated the rights to equality and privacy under the Constitution, and was accordingly void”. This was a very progressive step!

But within a few months, the Delhi High Court disagreed with the progressive stand taken by the  Andhra Pradesh High Court. This disagreement was further affirmed by the Supreme Court. Thus, the provision of Restitution of Conjugal Rights has continued till today.

Today almost 39 years after the landmark judgement was passed, the argument on whether is should even exist in modern society has again gained momentum. More so after the right to privacy was accorded the status of a Fundamental Right by the Supreme Court in 2017.

That makes the validity of Restitution of Conjugal Rights even more questionable. Thus, has the time come to bid goodbye to this archaic Victorian provision of law? Does this provision hold any significance in present-day society?

Restitution of conjugal rights puts the wife in danger of marital rape!

The Supreme Court of India in 1984 stated that that the restitution of conjugal rights did not force an unwilling wife to engage in sexual relations with the husband.

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But does this stance hold good in a country where marital rape is not even considered a crime? Where consent, more specifically from the wife is scoffed at? In that sense, isn’t restitution of conjugal rights a direct attack on the rights of the wife?

This provision can be again used by men to needlessly prolong a divorce simply to discourage the wife from escaping the marriage.

In abusive marriages, it forces women back to hell!

The right of filing a petition under the restitution of conjugal rights is available to both spouses. But women stand to be at a strong disadvantage. In a country where women are treated as “paraya dhan” even in the 21st century, it takes extreme courage for a woman to walk out of an abusive marriage. She know she may not be welcome in her parents’ home.

In such a case if the husband resorts to restitution of conjugal rights to force her to come back to him. It would be like forcing her back into the hell which she escaped with much difficulty.

The National Commission for Women has seen a steep increase in complaints of domestic violence in women in 2020 as compared to the previous year as reported here. Which is why the restitution of conjugal rights stands to only encourage such violence.

Can forcing spouses to live together truly repair a broken relationship?

The reason restitution of conjugal rights receives support from society and the legal fraternity is because of the false belief that it prevents the breakdown of marriages. A study in 2019 stated that India has the lowest divorce rates at less than 1%.

While a good majority of our population gloated over the results of this study, the fact remains that most marriages in our country are not happy marriages. Most couples do not head for a divorce due to fear of what society will say.

Our courts aim at preventing a marriage from breaking up, even if it’s abusive. While disagreeing couples can be given an opportunity to resolve their disputes, would forcing them to live together help the cause? Wouldn’t such a marriage, even if it were to continue actually be a toxic one? Are two people living apart happily not better than two bitter people living together?

It’s time for change…

The right of filing a petition for restitution of conjugal rights is available to both spouses. Men could also be at the receiving end of this.

Either way, this restitution of conjugal rights is a violation of an individual’s right to privacy and liberty. Many times a spouse may resort to filing a petition for restitution solely under family pressure. As a society, we need to dissociate the notion of taboo that we attach to a divorce.

In a country where most couples do not have the right to choose their partners, to expect them to have the right to end the marriage is wishful thinking. But it’s time we change.

It’s interesting to note that this colonial provision of the law was struck down by the British in 1970 in their own home country. Isn’t it time we realize that the outdated restitution of conjugal rights has no place in our country in present times?

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About the Author

Parvadavardini Sethuraman

A dreamer by passion and an Advocate by profession. Mother to an ever energetic and curious little princess. I long to see the day when Gender equality is a reality in the world. read more...

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