INTRODUCTION 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. For Instance, if a party to a marriage
refuses to consummate the marriage or commits adultery, the other
party may present a petition under Section 15 the Matrimonial
Causes Act Cap M7 Laws of the Federation of Nigeria 2004 for
dissolution of the marriage. 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. The object of this paper is
to appraise the concept of restitution of conjugal rights in
Nigeria, the abolition of the proceedings in relation to
restitution of conjugal rights in England and proffer reasons why
the practice in Nigeria is futile, anachronistic and should be
Jettisoned. THE CONCEPT OF RESTITUTION OF CONJUGAL RIGHTS
IN NIGERIA 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 as provided under Section
49 of the Act: That he or she sincerely desires conjugal rights to
be rendered by the respondent and is willing to render conjugal
rights to the respondent. 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. 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. See Section 52 of the Act. Also
as rightly noted by Professor Itse Sagay in his book (Nigerian
Family law, Principles, Cases, Statutes and Commentaries, Malthouse
Press Ltd, 1999 Page 122) refusal to comply with the decree will
not 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. One may ask out of
curiousity, of what utilitarian value is a decree for restitution
of conjugal rights if same cannot be enforced either by attachment
or compulsion and where refusal to comply with the decree will not
constitute contempt of court?. The Petitioner is simply left with a
decree which enforcement is dependent solely on voluntary
compliance which invariably will be hardly obtained since it is
very unlikely that a respondent who ignored the petitioner’s
written request in conciliatory language to resume cohabitation
would voluntarily comply with a toothless decree of Court for
restitution of conjugal rights. The Petitioner would therefore have
secured a pyrrhic victory having further strained the marital
relationship by instituting an action against the respondent to
obtain a decree that cannot be enforced. However, this will be
discussed in details anon. THE PRACTICE IN ENGLAND
AND ITS ABOLITION IN 1970 Restitution of conjugal rights
was a relief available under common law to a deserted spouse in the
ecclesiastical courts. In the ecclesiastical Courts desertion was
not a matrimonial offence thus, the only remedy available to a
deserted spouse was to obtain a decree of restitution of conjugal
rights compelling the other spouse to resume cohabitation with the
deserted spouse. Failure to comply with the decree was punishable
by excommunication. In 1813, the punishment of excommunication for
failure to comply with a decree of restitution of conjugal rights
was abolished and substituted with sentence of imprisonment for a
period not exceeding six months by the Ecclesiastical Courts Act
1813. Later in 1884, with the enactment of the Matrimonial Causes
Act 1884, failure to comply with a decree of restitution of
conjugal rights ceased to be punishable by imprisonment. Rather,
such failure to comply was deemed to be desertion (Statutory
Desertion) which entitled the deserted spouse the right to an
immediate decree of judicial separation and if coupled with the
husband’s adultery allowed the wife to obtain an immediate divorce.
The Matrimonial Causes Act 1923 abolished the double standard in
English divorce laws and equalised the rights of divorce of husband
and wife, giving the wife the right to divorce her husband on the
ground of adultery alone so that it thereafter became unnecessary
for her to rely on the husband’s failure to comply with a decree
for restitution of conjugal rights in order to obtain a
divorce.[1] In other
words, it was no longer necessary for a wife to approach the courts
for a decree of restitution of conjugal rights as a step to
establish desertion in other to obtain sufficient grounds to
succeed in an action for divorce. The Supreme Court of
Judicature (Consolidation) Act 1925[1] repealed the Matrimonial Causes Act 1884. Failure to
comply with an order of restitution of conjugal rights continued to
be a ground for judicial separation but was no longer deemed to
constitute desertion. In 1969, The Law Commission laid before the
parliament a proposal for the abolition of any proceedings or
action for a decree of restitution of conjugal rights, pursuant to
which the Matrimonial Proceedings and Property Act
1970[2] was enacted abolishing the matrimonial remedy of
restitution of conjugal rights as the action was seen as outdated
and rarely used. See The Law Commission (Law Com. No. 23) Proposal
for the Abolition of the Matrimonial Remedy of Restitution of
Conjugal Rights, 1969. It is noteworthy that shortly after the
abolition of this remedy in England, other territories in the
United Kingdom, Australia and Africa followed suit and abolished
the practice. It was abolished in Australia in 1975, South Africa
in 1979, Scotland in 1984, and Ireland in 1988. THE
OTIOSITY OF THIS REMEDY AND THE NEED FOR ITS ABOLITION IN
NIGERIA The practice of restitution of conjugal rights is
a complete waste of time, and the decree which the Courts are
empowered to make by virtue of the extant provision of Section 47
of the Matrimonial Causes Act is otiose. The decree by its very
nature is unenforceable being a decree intended to compel parties
to maintain personal relationship. The futility of such a decree is
further amplified by fact that it cannot be enforced by attachment.
See Section 51 of the Act. It is submitted that a party cannot be
compelled by a decree of Court to render conjugal rights to their
spouse whether or not such a party has just cause for refusal to do
so. Being a matter involving personal relationship, a party cannot
be compelled to continue personal relationship with another against
his/her wish especially where such relationship carries with it a
significant decree of intimacy such as cohabitation and other
concomitant incidents of consortium. It is noteworthy that the
decree of restitution of conjugal rights is aimed at reconciling
estranged spouses and saving the marriage from total collapse. This
can be gleaned from the provision of Section 49 which requires as a
condition for grant of the decree that the petitioner sincerely
desires conjugal rights to be rendered by the respondent and is
willing to do same and further that the petitioner has made a
written request in conciliatory language to the respondent before
instituting the suit. However, it is ironical that this is sought
to be achieved through litigation which by its adversarial nature
increases acrimony between the parties to the proceeding. Where a
respondent has been served with a written request as required by
Section 49(b) and he or she refuses to resume cohabitation with the
petitioner, it serves no ‘reconciliatory purpose’ to compel such a
party by a decree of court to resume cohabitation. It may be argued
that there may be the need to retain the practice since a party can
petition for dissolution of the marriage under Section 15(2)(g)
where the other party fails to comply with a decree for restitution
of conjugal rights made under the Act for a period of not less than
one year. However, this argument is untenable as that ground for
dissolution is supernumerary and needless. Firstly, the aim of
proceedings for restitution of conjugal rights is to salvage the
marriage and not to destroy it. Thus, a party cannot be said to
‘sincerely desire’ cohabitation if the aim is to obtain a ground to
dissolve the marriage. Importantly, it is submitted that the
refusal to render conjugal rights to the requesting party upon a
written request by that party in conciliatory language is enough
communication of the other party’s unwillingness to resume
cohabitation with the requesting spouse and such a blatant refusal
for a continuous period of one year is enough to establish
desertion which is a ground for dissolution of the marriage under
Section 15(2)(d). It is therefore totally otiose to petition for a
decree of restitution of conjugal rights where the other party has
clearly exhibited an unwillingness to resume cohabitation. Notably,
it cannot be reasonably argued that a petition for restitution of
conjugal rights can ever be filed with a sincere intention at
reconciliation considering the adversarial nature of litigation and
the concomitant acrimonies and resentments that it breeds. These
petitions are anachronistic devices sanctioned by law and wilily
adopted to achieve concealed motives other than reconciliation.
Sometimes the petitions are filed to enforce demands for
maintenance or to secure a ground for divorce. Penultimately, a
decree for restitution of conjugal rights in Nigeria being an
unenforceable order of Court, its usefulness solely depends on
voluntary compliance which may be hardly obtained. This regrettable
situation is further exacerbated by that fact that no sanctions can
be imposed in the event of breach. This simply places the Courts in
a situation of utter impuissance as it stands by helplessly like a
toothless bull dog and watches its orders being brazenly violated
having been clothed with the power to make the order but deprived
of the concomitant power to enforce same. Unfortunately, the
unenforceability of a decree for restitution of conjugal rights
detracts from the inveterate principle and practice of law that
orders and judgments of court must be obeyed and are enforceable as
the Courts do not act in vain. See Muhammed Ibrahim v. Olatunji
Ogunleye & Ors (2012) 1 NWLR (Part 1282) 489. In
J.O Anakwenze v. Louis Aneke & Ors (1985) 1 NWLR (Part
4) 771 at Page 779, the Supreme Court Per Obaseki JSC
pronouncing on the inherent and unimpugnable power of a Court to
enforce its judgment held as follows: One of the attributes of a
court of law is its competence to enforce its judgment…It should be
remembered that the term “judicial powers of the Federation”
include powers to enforce a decision or judgment or order given and
when section 6(1) of the Constitution of the Federal Republic of
Nigeria, 1979 vested judicial powers of the federation in the Court
of Appeal being one of the Courts established for the
federation, it vested in it that inherent power to execute its own
judgments and orders Also in Government of Gongola State v.
Tukur(1989) 4 NWLR (Part 117) 592 at Page 602 the Supreme
Court as follows: Judgments and orders are usually determinations
of rights in the actual circumstances of which the court has
cognizance, and give some particular relief capable of being
enforced. The Supreme Court further held at page 608 Para. H that a
judgment ordering or restraining the doing of an act may be
enforced by an order of committal or a writ of sequestration
against the property of the disobedient person. Unfortunately, by
Section 52 of the Matrimonial Causes Act, the decree for
restitution of conjugal rights shall not be enforced by attachment.
Further, the point has been made that a respondent who violates the
decree cannot be cited for contempt neither can he or she be
compelled to resume cohabitation with the petitioner. The dignity
and honour of the Courts cannot be maintained if its orders and
judgments are treated contemptuously and without respect. A
toothless order of court which actualization depends solely on
voluntary compliance will only lead to diminution of the vast
powers of the Court, the image of the Court and exposure of its
authority to ridicule and grave disrepute. Finally, a serious issue
to be considered is the constitutionality of a decree for
restitution of conjugal rights. Under the Constitution of the
Federal Republic of Nigeria 1999 (As amended) every person is
entitled to his personal liberty. See Section 35(1) of the
Constitution of the Federal Republic of Nigeria 1999 (As amended).
Further, the privacy of citizens is guaranteed and protected under
Section 37 of the Constitution. A person who has left the society
of another (whether or not for just cause) and has clearly
exhibited an unwillingness to resume cohabitation with such a
person cannot be ordered or compelled to do so. Such an order will
amount to a violation of the person’s right to personal liberty and
privacy. The fact the parties are married is of the moment and
cannot be a justification for making such an order. A party cannot
by the application of marriage be said to have lost his or her
constitutionally guaranteed right to personal liberty or privacy to
any extent. Once a person has exhibited a firm resolve not to live
with their spouse even before the marriage is dissolved, such a
person is not obligated to give a just cause or excuse for doing
so, and the Courts cannot interfere in such a person’s private life
and/or personal liberty by ordering them to render conjugal rights
to the deserted spouse. What is more, it is the Courts that
determines what amounts to just cause or excuse, and in so doing
the Courts will usually apply the objective test. It is simply
anachronistic and grossly unconstitutional to compel a person to
resume cohabitation with another simply because the reason they
have given for deserting their spouse is not just or objective.
Being a matter relating to cohabitation and/or consortium which
severely affects a person’s privacy due to the nature of intimacy
involved, the reason given for the withdrawal cannot be subject to
any other person’s assessment of what is reasonable or just cause.
This is why the Courts cannot interfere.
CONCLUSION Marriage ordinarily carries with it a
high degree of intimacy and emotional connection. When this has
been lost and a spouse withdraws from the society of the other,
compelling the withdrawing spouse to resume cohabitation with the
aggrieved spouse cannot restore this connection or the connubial
felicity that once existed. The lost connubial bliss cannot be
revived by a decree which compels parties to cohabit. This only
serves to heighten the acrimony between the parties and annihilate
whatever hope there is to salvage the dying marriage. Litigation
and court orders do not breed peace, intimacy, affection or
happiness and it is certainly not an effective way of reconciling
parties. What is more, a court should not be clothed with
jurisdiction to entertain and decide a cause if it is deprived of
the concomitant jurisdiction to enforce whatever judgment it
delivers. There is need to maintain the sanctity and inviolability
of the Courts and their orders and as stated earlier a toothless
order of court which actualization depends solely on voluntary
compliance will only lead to diminution of the vast powers of the
Court, the image of the Court and exposure of its authority to
ridicule and grave disrepute. Further, the practice can hardly
survive the test of constitutionality as it amounts to a violation
of a party’s right to personal liberty and privacy to compel them
to resume cohabitation with another against their wish. The concept
is a vestige of ancient times. It originated from ancient England
and was imported into our laws as a result of colonization.
Presently the practice may be considered as anachronistic and
retrogressive and even though it is intended to reconcile spouses,
it has lost its utility and significance in modern society. This is
why in 1969, The Law Commission laid before the parliament a
proposal for its abolition, pursuant to which
the Matrimonial Proceedings and Property Act
1970[3] was enacted abolishing it in England as the action
was seen as outdated. Shortly after the abolition of this remedy in
England, other territories such as Australia, Scotland, Ireland and
South Africa who like Nigeria borrowed the practiced from England
all abolished the practice. Unfortunately, close to 50 years after
its abolition in England, this practice is still extant in
Nigeria. 
It is finally submitted that the
practice should be abolished as same is unconstitutional,
retrogressive and totally otiose as a decree for restitution of
conjugal rights is of no utilitarian value to the petitioner.
However, in order to maintain the laudable intention of the
practice which is to salvage marriages from total collapse, a
provision may be made empowering the Court to appoint one or two
persons to act as mediators with the aim of seeking to reconcile
the parties and securing the freewill return of the deserting
spouse. Subscribe ToNairalaw News!
References ^ Supreme Court of Judicature (Consolidation) Act 1925
(en.wikipedia.org) ^ Matrimonial Proceedings and Property Act 1970
(en.wikipedia.org) ^ Matrimonial Proceedings and Property Act 1970
(en.wikipedia.org)
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