How is the registration of conjugal rights done in India

A fundamental principle of matrimonial law is that one spouse is entitled to the company and the comfort of the other. Thus, where a wife, without lawful excuse, refuses to lie with her husband, the husband is entitled to sue for restitution (restoration) of conjugal (marital) rights. Similarly, wife also has the right to demand the fulfillment her marital duties from the husband. The Court – HELD” that a suit for restitution of conjugal rights would lie in a Civil Court by a Muslim Husband to enforce his marital rights

There are, however, a number of valid defenses to a suit for restitution of conjugal rights. Some- of them are (A) – Cruelty to a degree rendering it unsafe for wife to return to her matrimonial home or there were gross failure to perform matrimonial obligations on the part of the husband. (B) Husband keeps mistress (C) actual violence infringing the right to safety- (D) Husband’s second marriage (E) violence endangering safety to life, limb and health or reasonable apprehension of such violence.

Case laws

1. Cohabitation is an essential of a valid marriage as the object of marriage is further perpetuation of the race by permitting lawful indulgence in passions for procreation of children. The foundation of the family rests on the institution of legal and valid marriage. In this case, marriage was dissolved by a Decree of Divorce. Husband filed appeal in the High Court against the said decree of divorce. Wife during the pendency of appeal contracted second marriage as there was no stay on the decree of divorce.

Wife had even one child from the second marriage. In appeal the High Court set aside the impugned order and restored the marital status of the parties. This Order was challenged in the apex Court. The apex Court held that if party chooses to contract second marriage during the appeal period, the adventure is deemed to have been undertaken at one’s own risk and the ultimate consequence of the judgment in appeal – Savitri Pandey vs. Prem Chandra Pandey (2001) 2 SCC 73.

2. If husband takes second wife during the pendency of suit for restitution of conjugal right, the Court has discretion to refuse the decree the suit – Itwari vs. Smt. Asgari, AIR 1960 All 684.

3. Consummation of marriage with girl below 5 years will not destroy her right of Option of Puberty and repudiate the marriage – Ghulam Sakina vs. Fakir Sher, AIR 1950 Lah. 45.

4. Indian Law does not recognize various types of cruelty, such as Muslim cruelty, Christian cruelty, Jewish cruelty etc. – Itwari vs. Ashari, AIR 1960 All 684.

5. When it is proved that man and woman were living as husband and wife for a large number of years, a legal presumption of marriage is established – Gorakhchand vs. Praveen Kumari, AIR 1952 SC 231.

6. If husband takes second wife during the pendency of suit for restitution of conjugal right, the Court has discretion to refuse the decree the suit – Itwari vs. Smt. Asgari, AIR 1960 All 684.

7. The relief of restitution of conjugal right means ordering an unwilling wife to go to her husband. It is a relic of ancient times and cannot be accepted after the Constitution of India came into force. It is now difficult to appreciate this compulsion

FAMILY LAW

on an Indian wife when she has a reasonable apprehension that her life with her husband is impossible or dangerous to her. The Court must be slow and cautious to these matters – Sakina Banu vs. Gulam Mustufa, AIR 1971 Bom. 166

1. The breach of condition of ‘Khana Damad’ cannot be said to operate as divorce and would not operate as dissolution of marriage – Mst. Jani vs. Mohd Khan AIR 1970 J&K 155.

2. The person who acts wali in marriage only can communicate the consent of bride to Kazi or to the husband – Kammali Abubakar vs. Vemgati Marakkar, AIR 1970 Ker. 277.

3. Equality amongst wives is the condition precedent and it has to be fulfilled – Lily Thomas vs. Union of India, (2000) Supp. SCR 464

4. Second marriage without legal divorce from first husband is illegal – Sabera Begum vs. G.M. Ansari, 1971 Bom. C.R. 10.