The leading idea of S. 9 was to preserve the marriage. From the definition of cohabitation and consortium, it appeared to the learned judge that sexual intercourse was one of the elements that went to make up the marriage, but that was not the sum-mum bonum. The courts do not and cannot enforce sexual intercourse. Sexual relations constituted an important element in the conception of marriage, but it was also true that these did not constitute its whole content nor could the remaining aspects of matrimonial consortium be said to be wholly un-substantial or of trivial character.
The remedy of restitution aimed at cohabitation and consortium and not merely at sexual intercourse. The learned judge expressed the view that the restitution decree did not enforce sexual intercourse. It was a fallacy to hold that the restitution of conjugal rights constituted “the starkest form of governmental invasion” of “marital privacy”.[AIR 1984 SC 1562 ]
The importance of the concept of conjugal rights can be viewed in the light of Law Commission – 71st Report on the Hindu Marriage Act, 1955 – “Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated thus-
“Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common things of the matter and of the spirit and from showering love and affection on one’s off-spring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage “breakdown” – and if it continues for a fairly long period, it would indicate destruction of the essence of marriage – “irretrievable breakdown”.