What you should know about restitution of conjugal rights.
CHAMAN LAW FIRM
11/21/2021 4 min read
THE CONCEPT OF RESTITUTION OF CONJUGAL RIGHTS.
What occurs when a party to a marriage fails to cohabit with and render conjugal rights to the other party? Can the aggrieved party seek a remedy in the court of law? And what is the available remedy in law?
This remedy is referred to as Restitution of Conjugal rights. Where the spouses are separated, a petition for the restitution of conjugal rights requests the court to direct the respondent to resume cohabitation with the petitioner. The jurisdiction of the High Court in respect of a petition for divorce is the same as in the case of proceedings for a decree of restitution of conjugal rights.
The institution of marriage under matrimonial laws the world over is a union which imposes upon each of the parties a number of marital obligations or duties which may collectively be referred to as consortium. Some of these imposed duties or corollaries of marriage includes the right to live together as husband and wife, the right to have the marriage consummated, sexual fidelity, mutual defence amongst others. The law provides remedies in certain cases where either of the spouse fails or refuses to fulfil one or more of these marital obligations.
It follows therefore that after a marriage has been validly contracted, if any of the parties to the marriage without reasonable excuse refuses to cohabit with, and render conjugal rights to the other, then the aggrieved party has the legal right to file a petition for a decree of restitution of conjugal rights. This matrimonial remedy is provided for in Section 47 of the Matrimonial Causes Act.
Section 47 of the Matrimonial Causes Act 2004 provides as follows:
A petition under this Act by a party to a marriage for a decree of restitution of conjugal rights may be based on the ground that the parties to the marriage, whether or not they have at any time cohabited, are not cohabiting and that, without just cause or excuse the party against whom the decree is sought refuses to cohabit with, and render conjugal rights to the petitioner.
The relief is one which is common and appropriate in cases where matrimonial cohabitation has ceased for one reason or the other and one of the parties is desirous of resuming cohabitation. However, this is not to say that the remedy is not available where both parties never cohabited at any time after the marriage. Section 47 makes the remedy available whether or not the parties have ever cohabited.
The Court after hearing the petition of the aggrieved party may on being satisfied that the party against whom the decree is sought has without just cause or excuse refused to render conjugal rights to the petitioner, make a decree of restitution of conjugal rights.
However, the Court will not make a decree for restitution of conjugal rights unless it is satisfied that the petitioner genuinely desires cohabitation. Sincerity is therefore a crucial element. By and large to succeed in an action for decree of restitution of conjugal rights the petitioner must establish the following:
a. That he or she sincerely desires conjugal rights to be rendered by the respondent and is willing to render conjugal rights to the respondent.
b. That a written request for cohabitation, expressed in conciliatory language, was made to the respondent before the institution of the proceedings, or that there are special circumstances which justify the making of the decree notwithstanding that such a request was not made
It is important to state that the above pre-conditions are very critical to the grant of a petition for a decree of restitution of conjugal rights and where a petitioner fails to establish compliance with the above preconditions, the court will not make the decree, and where it does, such a decree will be set aside on appeal.
In Eyofor v. Eyofor the respondent. (Petitioner at the trial court) petitioned for a decree of restitution of conjugal rights as well as ancillary reliefs which included maintenance. The trial judge granted a decree for restitution of conjugal rights. On appeal, the Court of Appeal allowing the appeal held that Section 49 of the Matrimonial Causes Act lays down the statutory condition precedent to the granting of prayer for restitution of conjugal rights and the conditions are mandatory. Since the learned trial judge failed to show that the provisions of that section had been complied with before granting the decree in favour of the respondent that decree cannot stand.
The Courts have a duty to grant a decree for restitution of conjugal rights in a case where either of the spouses has abandoned the other without any just cause or excuse and the aggrieved spouse fulfils the conditions set out in Section 49 of the Matrimonial Causes Act. Whenever the question arises whether there was a reasonable excuse for the respondent’s withdrawal from the Petitioner, the burden of proving reasonable excuse shall be on the respondent.
Thus, once the petitioner has proved his or her case, the burden of proof shifts to the respondent to prove the defence of just cause or excuse. Upon hearing a petition for restitution of conjugal rights, the Court can only order cohabitation but cannot enforce sexual intercourse. Thus the decree cannot be granted where the respondent already lives with the Petitioner but refuses to have sexual intercourse with the petitioner.
Notably, a decree for restitution of conjugal rights cannot be enforced by attachment nor can refusal to comply with the decree constitute contempt of court although such a refusal to comply with the decree for one year will constitute a ground for dissolution of the marriage under Section 15 (2)(g) as the respondent will be deemed to have deserted the Petitioner.
Further the Petitioner cannot forcibly adduct and compel the respondent to cohabit with him or her in order to enforce the Court’s decree for restitution of conjugal rights. Such forcible compulsion may render the petitioner liable to damages in an action in tort or for the breach of the Respondent’s fundamental rights.