Marriage is an institution that admits a lady and a man to family life and fixes certain rights and duties which are personal and legal by nature. Marriage can be regarded as a biological, psychological, cultural and social affair. It bounds husband and wife to live together but when either of the spouses left one without telling the other, then the aggrieved party has the right under codified laws to file a petition and restore the status of cohabitation. The learned court, after hearing the arguments of the spouse on satisfaction, that there is no legal ground to reject the petition, may pass a decree of restitution of conjugal rights. This right in family laws is known as Restitution of Conjugal Rights.
In modern India, the remedy of restitution of conjugal rights is available to Hindus under Section 9 of the Hindu Marriage Act, 1955, to Christians under Section 32 and 33 of the Indian Divorce Act, 1869, to Muslims under the general law, persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954 and to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936.
Smt. Ranjana Kejriwal was married to Mr Vinod Kumar Kejriwal on 26 April 1987 at Shree Ganganagar, Rajasthan. After marriage, they both came to Bombay to permanently settle there. Thereafter, Smt. Ranjana Kejriwal was informed that her husband Mr Vinod Kumar Kejriwal is already married to someone else and he hid this fact from her. Hereafter, Smt. Ranjana Kejriwal filed a petition at Family Court, Bandra, for restitution of Conjugal rights and Mr Vinod Kumar Kejriwal ( respondent) filed a case for divorce from the appellant. Appellant, Smt. Ranjana Kejriwal also filed a complaint before the Metropolitan Magistrate, at Borivali on 27-7-1991 against the respondent under sections 495, 493, 420, 496 and 114 etc of I.PC. The Respondent filed an application before the learned court to bring attention the point of maintainability of the marriage, while the appellant’s application for interim maintenance under Section 125 of CrPc was taken up for hearing. The learned court found that the petition for conjugal rights by the appellant is non-maintainable as the marriage between the both is not legal and void since the beginning. Aggrieved by the order of the learned family court, an appeal was filed by the appellant in Bombay high court.
Contention by Appellant-
The learned Counsel for the appellant contended that the dismissal of the petition is illegal. She contended and cited a decision of Laxmibai v.Ayodhya Prasad in which it was held that the expression of “husband and wife” under section 24 of the Hindu marriage act is not only limited to legally married “wife and husband”, but it is also extended to a person who is claiming to be wife or husband.
Contention by Respondent
The learned counsel for the respondent submitted that there is no evidence to prove that the institution of marriage between appellant and respondent has taken place. He contended that no photographs regarding the marriage ceremony had been produced in the learned court and finally, the respondent hadn’t obtained a divorce from his earlier wife so ultimately, marriage between the appellant and respondent can’t be regarded as legal.
Principal laid down:
1. The Bombay High court pointed out that the appellant had already filed a criminal case in her local jurisdiction against the respondent for hiding the fact of his first marriage and cheating, so, on her own allegation, the marriage between the respondent and appellant is void.
2. Restitution of Conjugal right is maintainable only in a legal marriage.
The court dismissed the appeal and held that the marriage between the respondent and appellant was void, since the respondent was already married so the restitution of conjugal right is not maintainable as the marriage between the respondent and appellant was not legal.
Judges’ name: A Desai, T C Das
Judgment date: 24 July 1997