In an age where consent, privacy, dignity and personal liberty reigns supreme, restitution of conjugal rights (RCR) remains a historical relic awaiting a dignified judicial burial to prevent the lights of the Constitution from burning out. The Hon’ble Supreme Court of India and several High Courts in India have risen to evolve jurisprudence with changing times and have recognized that keeping a legal tie alive in a contested divorce even if one spouse insists on forced restitution, serves no good at all and is rather a tool for extortion to achieve malafide intentions and a pathway that would open floodgate for more cruelty. Further, it severely affects the physical and mental health of individuals concerned.

 

Origins

 

The remedy of restitution of conjugal rights (RCR) traces its roots to 18th century English canon law, where ecclesiastical courts forced spouses to live together, in total contrast to Bible teachings and interpretations.  However, the English law commission in its wisdom back in 1970 found it as an ineffective and obsolete remedy to save any marriage through this approach, which led to the abolition of the Act in the Matrimonial Proceedings Act of 1970 in England.

In Australia, the law was removed in 1975, in Scotland in 1984, in Ireland in 1988. In India, where Parliament has yet to statutorily recognise irretrievable breakdown, no-fault divorce (despite Law Commission recommendations), respectful courts have filled the gap. This judicial evolution and wisdom implicitly concede that forcing cohabitation in contested cases is futile and adds further cruelty, making the court in part a contributor to the misery as well.

 

RCR a piece of paper with judicial waste of time in contested divorce

 

In contested divorce where one party seeks dissolution of marriage on grounds of cruelty or  desertion or infidelitycumulatively viewed with conduct arising through the litigation process, the RCR decree is reduced to a piece of paper, best confined to the dustbin. When such contested divorces are further accompanied with police complaints, FIRs, mutual allegations, mud-slinging, snooping, threats and intimidation to the other spouse and families, restoration of marital consortium only serves to be fatal. RCR in contested divorces have often been used as a tool by trial court lawyers without application of mind only to fool the litigants and extract money by providing a dead solution.

 

RCR invoked by a litigant as a prayer in a petition filled with false allegations, threats, pathological lies, FIR, police complaints,  even assuming such an allegation to be true for the sake of argument, restitution of conjugal rights virtually is impossible and dies a natural death, for such a foundational claim strikes at the very root of mutual trust, transparency& honesty, which is the foundational pre-requisite of a marriage. When one spouse has labelled allegation against the other spouse or any close family member, the possibility of restoration of matrimonial harmony is completely extinguished in full measure. Further when a litigant seeks RCR or exhorbitant alimony as a prayer before a trial court, it prima facie exposes the malafide mind of the litigant. When a litigant comes to a court with such a perverted mindset, this serves as a natural inference to further decode the conduct of the litigant which by itself shows irretrievable breakdown of marriage which can be appreciated by any decent person with integrity and values. In Chetan Dass v Kamla Devi (2001) 4 SCC 250, the Supreme Court of India, held that “Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection. The relationship has to conform to social norms as well.” In a contested divorce, ingredients of trust, respect, love and affection die a natural death when maintenance is sought for, police complaint filed, allegation made, reputational mud-slinging built, snooping executed and permanent alimony claimed exorbitantly. An RCR petition by such a litigant and endorsed by a trial court exposes the pernicious underbelly of compromise and a mean mind of characters at play, particularly when the petition prayed is ipso facto in conflict with conduct& evidence on the record.

 

How RCR directly violates Article 21 of the Constitution of India

 

Article 21 of the Indian Constitution states that no person shall be deprived of their life or personal liberty. The Supreme Court of India has interpreted "life" as more than just physical existence; it includes the right to live with human dignity. Thus, when any trial court passes a corrupt decree of RCR without application of mind in a contested divorce filled with police complaints, that strikes at the very root of the Supreme Court of India’s right to live with human dignity. Dignity cannot be purchased by force or coercion. Further, the right to privacy, liberty and right to be left alone is an integral part of any human right. Thus, what should have been built by love, cannot be restored by law and a burial is at best that serves to achieve the end.

 

The need for judicial scrutiny and vigilance of RCR judgements passed by trial courts

 

The collegium at the higher courts and the Supreme Court must undertake a comprehensive scrutiny of judgements passed by family court judges and evaluate why some local courts pass RCR decrees in contested marriages filled with police complaints, which are reduced to a legal fiction and attempt to keep alive a forced resuscitation over a dead horse instead of delivering a simple and natural principle of justice. Such courts not only violate Constitutional powers when passing preposterous judgements but also lack empathy and intellect by keep two belligerent parties tied in a legal comedy wasting judicial time, energy and resources. Further such Family Court judges also throw to the wind High Court and Supreme Court inspired judgements.  Trial courts attempting to justify reasoning on surmises and assumptions to save dead marriages expose the sadistic mindset of such courts in question and the collegium must initiate a vigilance enquiry. Such judgements demonstrate the poor credentials of the concerned court, besides increasing the load on superior courts.

 

 

A Colonial Relic in Modern Matrimony

 

In contested divorce scenarios, RCR is frequently invoked defensively without honest intent just because the Indian Parliament has forgotten to give it a decent burial and has never prioritized reforms around this. A husband facing a wife’s divorce petition on cruelty may file an RCR suit claiming she deserted without cause. Conversely, a wife might use it to stall proceedings or weaponize it by claiming permanent alimony in crores. The decree, if passed stands opposed to ocean of Judgements passed by Supreme Court of India and several High Courts of India. The right to divorce emerges as a fundamental right in today’s times and courts must facilitate such processes tactfully than to be a participative actor in the process of eternal damnation by fraudulent and sadistic litigants. Senior Advocate Indira Jaising argued before the Supreme Court Constitution Bench that the right to exit a marriage is a fundamental right under Articles 19(1)(c) and 21, asserting that "irretrievable breakdown" should be grounds for divorce. She contended that courts should not force partners to stay together, emphasizing that matrimonial laws should allow for the dissolution of marriage when it has failed. This argument draws similarity with global consensus in modern matrimony, United Nations Charters on human rights and dignity and the Supreme Court of India’s appreciation of right to privacy and liberty.

 

Constitutional transformative jurisprudence

 

Modern courtroom wisdom has evolved to recognize rightly that RCR is savage and barbarous opening a floodgate for crimes that could follow, threats, coercion and fake complaints too. In K.S. Puttaswamy v. Union of India (2017), the nine-judge bench elevated privacy and decisional autonomy as intrinsic to Article 21, encompassing “personal intimacies of the home, the family, marriage… and procreation.” A pending Public Interest Litigation, Ojaswa Pathak v. Union of India (WP-Civil) No. 250/2019, directly challenges rules on exactly these grounds—privacy, autonomy, and equality under Articles 14 and 21. Petitioners argue the remedy of RCR legitimises coercion in an era where consent, not compulsion, defines relationships.Cohabitation by all means is an intimate personal choice and a Family Court decree of forceful staying violates everything under the sun literally burning the Constitution. The right to live with, have relationship with, is a personal choice and a personal right. A family court without application of mind cannot simply pass such orders (even if a silly litigant wants or an incompetent lawyer suggests) drawing direct conflict with law and order and also with common sense (although not very common at times). Infact family courts passing such orders are nothing different from facilitating soft terrorism and reflects extremely poorly on the maturity of such a court in question.

 

Time for Legislative and Judicial Burial

 

Contested divorces epitomise irretrievable breakdown filled with long separation, multiple litigations and police complaints, besides mutual accusations. In such instances, RCR becomes actively counterproductive. It is weaponised to delay proceedings, increase costs, and harass the petitioner to settle with money. Restitution of conjugal rights in today’s environment defeats the very purpose of justice and reduces the trial court to a rubber stamp, more particularly in a contested divorce wherein a RCR decree can never fix a fatally broken relationship and only prolongs suffering and conflict. This is magnified predominantly in marriages which are short lived, without children and have failed multiple mediations as well. The role played to give a decent judicial burial by various stakeholders i.e honest lawyers, judges, policy makers remain crucial, in pursuit of building a happy India. The arc of a broken marriage must bend, and bend to a no-fault divorce soon in India.

 

About the author:

Dr Edmond Fernandes is World Economic Forum Young Global Leader and Consultant Physician.