EXECUTING A DECREE OF RESTITUTION OF CONJUGAL RIGHTS UNDER

CPC

INTRODUCTION

Restitution of Conjugal Rights is a remedy available to people of all religions and is

embodied in the personal laws as applicable to their community. The law relating to this
remedy provided to different religions, though differently worded and enshrined in different
statutes has a uniform import. The remedy is granted to the person seeking the same upon the
fulfilment of certain conditions. They are as follows:

i. The respondent needs to have withdrawn from the society of the petitioner.

ii. Such withdrawal is without any reasonable excuse or cause.

iii. The court is satisfied about the truth of the statements made in such petition.

iv. There is no legal ground why relief should not be granted.

While this relates to the substantive law on the subject, upon the decree being pronounced for
the restitution of conjugal rights, the Code of Civil Procedure, 1908, gives the mode of
execution of such decree.

Order 21 Rule 32 of the Code of Civil Procedure

Upon the pronouncement of the decree is favour of restitution of conjugal rights, if disobeyed
by the judgment-debtor, the manner of execution of the same is given under Order 21 Rule 32
of the Code.1 In order for this rule to be applicable, the essentials that are required to be
fulfilled are as follows:
i. A decree must have been passed at the instance of one spouse against the other,
ordering the latter to live with his or her spouse and allow for restitution of conjugal rights.
ii. Such a decree must have been wilfully ignored, or not complied with, by the judgment
debtor inspite of having a sufficient opportunity of doing so.

1
Order 21, Rule 32(1) states as follows (1) Where the party against whom a decree for the specific
performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had the
opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a
decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the
specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment
of his property or by both.
iii. If all these conditions can be satisfied, the court can order attachment of property of
the judgment debtor.

Before the amendment of this sub-rule in 1923 a decree for restitution of conjugal rights
could be enforced also by imprisonment, but after the amendment such a decree is
enforceable only by attachment of defendants property.
Sub-rule (3) of Order 21 Rule 32 of the Code of Civil Procedure provides that in cases where
such an attachment as has been ordered under sub-rule (1) of the Order 21 Rule 32 of the
Code of Civil Procedure has been in force for a period of six months and the decree of
restitution of conjugal rights has not been complied with even after such attachment, then the
decree holder may file an application for sale of such attached property, and the court can
award compensation from the proceeds of such sale to the decree holder as compensation,
giving the balance of the rest to the judgment debtor.

If it so happens that no application is made by the decree holder for sale under the
aforementioned section within six months of the order of attachment, then the attachment
ceases by the operation of sub-rule (4) of Order 21 Rule 32 of the Code of Civil Procedure .
The same sub-rule also provides that if the decree is satisfied within 6 months from date of
attachment and all costs of execution are paid by the judgment debtor, not only will the
attachment cease but the decree will also be deemed to be satisfied. It is noteworthy that there
is not specific provision which deals with satisfaction of the decree under the Code of Civil
Procedure.

CASE I: Mt. SheoKumari and Ors. v. Mathura Ram, AIR 1936 All 657

Facts: Mathura Ram instituted a suit in the civil court for restitution of conjugal rights
alleging that SheoKumari had been married to him. The suit was contested by SheoKumari
who is a minor. It was decreed and the decree of the first Court was confirmed in second
appeal by the High Court. After the termination of the proceedings in the civil case, Mathura
Ram applied to the District Judge preferring two prayers. First that he should be appointed
guardian of his wife SheoKumari. Second that he should be given the custody of his wife.
The application was opposed by SheoKumari. The District Judge refused to grant the former.
The learned District Judge under his order, dated 18th August 1934, refused the first
application and allowed the second one. It directed that the custody of SheoKumari be given
to her husband Mathura Ram under Section 25 of the Guardians and Wards Act.This order
passed by the District Judge also shows that the wife had, as a matter of fact, never lived with
her husband.

First Appeal: An appeal was preferred by Sheo Kumari against the order of the District
Judge. This was heard by a learned single Judge of the High court. This appeal was
dismissed.

Letters Patent Appeal: After the dismissal of the first appeal a Letters Patent appeal was
preferred by SheoKumari.

Decision: The High court reasoned that the interpretation of S.25 of the Guardians and Wards
Act arrived at by the lower courts were faulty in as much as that they applied to situations
concerning parent and child. The high court also noticed the initial reluctance on the part of
the lower court before arriving at such an interpretation especially when the minor had never
been in the custody if the person wanting to be declared as the guardian. Then the court put
forward its own reasons for allowing the appeal in the following words. It opined that in the
case before it the husband had gone approached the court on the allegation that his wife,
though married to him, would not come and live with him. Following this, a decree for
restitution of conjugal rights had been passed against her. If the husband were to go to the
civil court with a prayer that he should be permitted to take forcible custody of his wife on
the basis of this decree, such a prayer would never be granted. His only remedy would be to
get an attachment against the property of his wife if she has any. Thus, the court reasoned that
it would be altogether wrong to permit the husband (plaintiff) to achieve such an object by
making an application under the provisions of Section 25, Guardians and Wards Act. Thus,
the court finally held that it would be unfair and unjust in a case of this description to pass an
order that the husband should be allowed to take custody of the wife when it is known that
under the decree which he has obtained for restitution of conjugal rights he will not be able to
get that privilege. Hence, the appeal was allowed.

CONCLUSION

Conjugal rights as held by the Supreme Court, is a right inherent in the institution of marriage
itself, and allows the husband or wife to have the society of the other spouse. It does not
mandate sexual intercourse. Also, the judge who orders such a decree applied his mind as to
the unwillingness of a spouse to engage in marital intercourse and it such unwillingness is
found such a decree is never give. There are sufficient safeguard in Section 9 to prevent it
from being tyranny. Having regard to the purpose of the decree of restitution of conjugal
rights and its inducement offered by the civil procedure code in the form of order XXII rule
32 as a result thereof, the method of execution cannot be ultra vires the Constitution of India
under article 21 or 14 because the Section 9 of the Hindu Marriage Act itself is not
unconstitutional and merely embodies pre existing law. Where the substantial law is
constitutional, its method of execution cannot said to be unconstitutional on grounds other
than fair procedure. The case of SarojRani v. Sudarshan2 cleared the confusion surrounding
this point of law. These have merely been included by the Legislature since these are mostly
enforceable against husbands who desert their wives.

It was found that the reasoning of the Andhra Pradesh High Court in the T. Sareetha case was
founded on questionable bases. These were, as pointed out by the Delhi High Court in the
Harvinder Kaur case, as follows. First, the characterization of the remedy of restitution of
conjugal rights as forced sex. Secondly, a misreading of the Order 21 rules 32 and 33 to the
extent that they could be used to imprison the judgment debtor. It was pointed out by the later
decisions that the provisions in question were a aimed towards preservation of the marriage
and were part of a structure facilitating divorce on the ground of irretrievable breakdown of
marriage. It was also noted by the Supreme Court that the relevant provisions of the Code of
Civil Procedure did not provide for imprisonment. On the issue of misuse of these provisions
the court opined that the judge who orders such a decree applies his mind as to the existence
or absence of a reasonable excuse for the ensuing separation between the spouses. If a
reasonable excuse exists then such a decree cannot be granted. Thus, there are sufficient
safeguardsprovided by the law to prevent such a remedy from being misused.

Order XXI Rule 33, is a welcome inclusion since it allows the court to order a husband to
make to the wife periodical payments in the nature of maintenance if a decree for restitution
of conjugal rights has not been followed. Till such time as an order for judicial separation and
divorce is given this ensures that the wife is not left in penury. Since it also follows that after

2
AIR 1984 SC 1562.
a period of restitution of conjugal rights if the parties still feel they cant live together they
can file for judicial separation or divorce under Section 13 of the Hindu Marriage Act.

RESEARCH METHODOLOGY
The methodology adapted to carry out the research work will be doctrinal in nature,
descriptive, and analytical. The relevant material will be collected from the primary and
secondary sources like international legal instruments, statute, judgments, books, newspapers,
law journals, law reports, internet references and opinions of research scholars, academicians.

RESEARCH OBJECTIVE
This project seeks to examine the law regarding execution of decree of restitution of conjugal
rights, which related to Order XXI Rule 32 and 33 of the Code of Civil Procedure. The
provisions regarding attachment of property and imprisonment in civil prison will also be
looked into Also, the constitutional tussle with the provisions aforementioned has been
examined.

RESEARCH QUESTION
1. In a civil suit for restitution of conjugal rights whether imprisonment is valid?
2. In a civil suit for restitution of conjugal rights whether attachment of property is
valid in light of Article 14 and 21?
3. Do these two provisions constitute as coercion forcing a husband and a life to live
together?
4. What is the position of law in after the SarojRani case?
5. What is the procedure to be followed as given in Order XXI Rule 32 and 33 of the
Code of Civil Procedure for execution of such a decree?

TENTATIVE CHAPTERISATION

CHAPTER 1: STATUTORY PROVISIONS RELATED TO DECREE FOR RESTITUTION

OF CONJUGAL RIGHTS

1.1 Substantive Provisions Relating to Restitution of Conjugal Rights

1.2 Order 21 Rule 32 of the Code of Civil Procedure
1.3 Order 21Rule 33 of the Code of Civil Procedure
CHAPTER 2: JUDICIAL PRONOUNCEMENTS

CHAPTER 3: CONSTITUTIONAL CHALLENGES.

CHAPTER 4: DOCTRINE OF RESTITUTION IN GENERAL

CHAPTER 5: CONCLUSION

BIBLIOGRAPHY

1. S. Sarkar&Manohar, Code of Civil Procedure 10thedn. (Nagpur: Wadhwa Co.,

2004).
2. V. Aiyer, Code of Civil Procedure 6thedn. (Hyderabad: Gogia Law Agency,
2000).
CASES

1. Mt. SheoKumari and Ors. v. Mathura Ram, AIR 1936 All 657.
2. SarojRani v. Sudarshan, AIR 1984 SC 1562.

RUCHI SHARMA (BC0140049)