Discuss the concept of Restitution of Conjugal rights under Muslim Law.
In every religion, whether it is Hindu religion or Muslim religion, marriage is one of the most important institution which not only allows the parties to live with each other but also arises certain matrimonial obligations and it is duty of each spouse to perform his matrimonial obligation. The basic aim of marriage is to give freedom to the parties so that they could enjoy the companionship of each other and provide financial, physical and emotional support to each other.
But sometimes, one of the spouses fails to perform his matrimonial obligations and he without any reasonable excuse withdraws himself from the society of another, then in such a situation whether can the another party file a suit against the wrongdoer to compel him to fulfil his matrimonial obligations.
According to Muslim law, if any party fails to perform his matrimonial obligations and withdraws himself from the society of another spouse then the aggrieved spouse has right to file suit for restitution of conjugal rights.
Here the word “Conjugal Rights” means Matrimonial Rights and the word “Society” means Companionship, Cohabitation i.e. Consortium (living together as husband and wife). According to Muslim law, if any spouse has withdrawn from the society of another spouse it means the former has refused to stay with another spouse, refused to have matrimonial intercourse and refused to give company and comfort. So, it can be said that the word “Withdrawn from Society” has element of Desertion.
If the petitioner proves that respondent has deserted him, it will obviously amount to withdrawal from society.
This section includes two kinds of desertion:-
• Actual Desertion
• Constructive Desertion
Where any spouse has left the matrimonial home and started residing apart from another spouse that is actual desertion whereas if both the spouses reside in matrimonial home but one of the spouses refuses to perform matrimonial obligations and refuses to matrimonial intercourse that is constructive desertion.
In both the cases an aggrieved party can file a petition for restitution of conjugal rights. But the initial burden of proof will be on the petitioner and he has to prove that the respondent has withdrawn from the society without any reasonable excuse and if he proves this thing then burden of proof will be shifted on the respondent and he will have to prove that he has withdrawn from society because of a reasonable ground. If the respondent proves the reasonable excuse then the court will not grant the decree otherwise court will grant the decree of restitution of conjugal rights.
According to Muslim Law, it is a positive relief because the main aim of this relief us to preserve the marriage and not to disrupt the marriage as in case of divorce. The main aim of this relief is to protect the marriage and try to re- unite the parties by giving them chance to solve all the doubts.
Marriage is a social institution and it is not only important for parties but also important for society because it helps the society in continuation by adding a unit into it. So, from the point of view of society also, it is necessary that marriage between parties should not be broken and this remedy gives them chance to solve all the issues and enjoy the companionship of each other.