Restitution of Conjugal Rights under the Special Marriage Act

Marriage carries a right to the society of one's spouse. Where one spouse withdraws from the other without reasonable excuse, section 22 of the Special Marriage Act allows the aggrieved spouse to seek a decree directing the return. The remedy mirrors section 9 of the Hindu Marriage Act and shares its strengths and controversies: it can encourage reconciliation, but it is criticised as an intrusion into personal autonomy. In practice it matters most as a step towards divorce. This note covers the provision, its burden of proof, its enforcement and consequences, and the constitutional debate.

1. The Provision

Section 22 and its consequences

Figure 1: Section 22 and its consequences

Text, s.22. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may petition the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements in the petition and that there is no legal ground why it should not be granted, may decree restitution.
Explanation. Where a question arises whether there was reasonable excuse for the withdrawal, the burden of proving reasonable excuse is on the person who has withdrawn. The petitioner need only prove the withdrawal.
Society. The remedy concerns cohabitation and companionship, not merely sexual relations.
Discretion. The words 'may decree' and 'no legal ground' leave the court room to refuse relief, for example where the petitioner's own conduct caused the withdrawal.

2. Reasonable Excuse

How courts have treated common defences

Figure 2: How courts have treated common defences

Standard. A reasonable excuse need not amount to a ground for a matrimonial relief, but it must be a serious and weighty cause; ordinary quarrels do not justify withdrawal.
Conduct of the petitioner. Cruelty, adultery or other misconduct by the petitioner justifies withdrawal and is a complete answer to the petition.

3. Enforcement and Consequences

Enforcement. Under Order XXI Rule 32 of the CPC, a decree for restitution cannot be enforced by detention in prison; it may be enforced by attachment of property where the decree-holder seeks it.
Divorce. Where there has been no restitution of conjugal rights for one year or more after a decree, either party, including the spouse against whom the decree was passed, may petition for divorce (s.27(2)(ii), inserted in 1970)
Judicial separation. Failure to comply with a restitution decree is itself a ground for judicial separation (s.23(1)(b))
Alimony. The court may award maintenance pending the proceedings and permanent alimony on passing a decree (ss.36, 37; Topic 22)

4. The Constitutional Debate

Cases on the parallel provision in the Hindu Marriage Act

Figure 3: Cases on the parallel provision in the Hindu Marriage Act

Saroj Rani v Sudarshan Kumar Chadha (1984). The Supreme Court upheld s.9 of the Hindu Marriage Act, holding that restitution serves a social purpose as an aid to preventing the break-up of marriage, and approved the Delhi High Court's view in Harvinder Kaur over T. Sareetha.
After Puttaswamy. Since the recognition of privacy as a fundamental right in K.S. Puttaswamy v Union of India (2017), fresh challenges to restitution provisions have been raised before the Supreme Court. Saroj Rani remains the governing decision.

⚠ Exam trap

Under s.22, the petitioner proves withdrawal; the respondent bears the burden of proving reasonable excuse (Explanation). A restitution decree cannot be enforced by imprisonment (Order XXI Rule 32 CPC). Non-compliance for one year allows either party to seek divorce (s.27(2)(ii)) and is a ground for judicial separation (s.23(1)(b)). The Supreme Court upheld the parallel s.9 of the Hindu Marriage Act in Saroj Rani (1984), preferring Harvinder Kaur to T. Sareetha.

5. Frequently Asked Questions

Who must prove reasonable excuse in a petition for restitution of conjugal rights?

The spouse who has withdrawn from the society of the other. Under the Explanation to s.22, the burden of proving reasonable excuse is on the person who has withdrawn; the petitioner need only establish the withdrawal.

Can the spouse against whom a restitution decree is passed seek divorce?

Yes. Under s.27(2)(ii), where there has been no restitution of conjugal rights for one year or more after the decree, either party may petition for divorce, including the party who did not comply.

6. Related Topics

Topic 11: Judicial Separation, Section 23. The companion remedy.
Topic 16: Additional Grounds for the Wife and Non-Resumption Grounds. Divorce under s.27(2)