The changes brought about by the Hindu Marriage Laws (Amendment) Act, 1976 have given rise to a controversy, already simmering with regard to the relevance of restitution of conjugal rights. When the remedy of divorce by mutual consent has been included and the grounds of judicial separation and divorce have been made common, parties to marriage would hardly opt for restitution.
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Prof. Derrett who was a votary of the retention of the remedy under the Hindu Marriage Act, 1955, admitted that it serves no purpose in many cases, and is a mere half way house to divorce or is a counter blast to an application or suit for maintenance.” Dr. R.K. Agrawal and S.P. Sharma pleaded for the ouster of the remedy from the Act as according to them it has become outdated and hardly deserves a place in the law book. It has become “fossilized and redundant” and should be abolished from the Indian law.
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But Prof. Derrett believes that the remedy for restitution of conjugal rights is of great value for the Hindu Society. According to him “the practical utility of the remedy is little in contemporary England, but in India where spouses separate at times due to misunderstanding, failure of mutual communication of the intrigues of relatives, the remedy of restitution is still of considerable value.
The view of Prof. Derrett by and large represents the popular feelings of Hindu spouses but with the changed social scenario of the Hindu Community, rapid growth of nuclear families, spreading of education and consciousness of their rights, the remedy of restitution is gradually losing its significance. A survey of reported case laws exhibits that the aggrieved spouses hardly chooses the restitution as against divorce, which has been rendered easier by the Amendment Act of 1976.