Marriage under all matrimonial laws is union imposing upon each of the spouse’s certain marital duties and gives to each of them certain legal rights. After the solemnization of marriage, both husband and wife are legally bound by the law to maintain their conjugal life together. If either of the spouses departs from the other then the aggrieved spouse may acquire a statutory matrimonial relief guaranteed under the codified personal law to restore their status of the other subject to validation of certain facts. This can be done by filing a petition in court seeking resumption of cohabitation. The court after hearing the petition of the aggrieved spouse, on being satisfied that there is no legal ground why the application shall be refused and on being satisfied with the truth of the statements made in the petition may pass a decree of restitution of conjugal right. This right is known as Restitution of Conjugal rights.

Section 9 in The Hindu Marriage Act, 1955

Restitution of conjugal rights:

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Explanation:

Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. The idea of providing for restitution by a court decree is to preserve the marriage tie as far as possible, by enabling the court to intervene and enjoin upon the withdrawing party to join the other.

The remedy of Restitution of Conjugal right was made available under the British rule to all communities in India under the general law. In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage Act, 1955, to Muslims under general law, to Christians under Section 32 and 33 of the Indian Divorce Act, 1869, to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936 and to persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954.

Conditions for acquiring Decree of Restitution of Conjugal right:

1.   The other spouse has withdrawn from the society of the petitioner.

2.   There is no reasonable excuse for such withdrawal. Should the respondent allege reasonable excuse, the burden of proof lies on him/her.

3.   The court satisfied as to the truth of the statements made in the petition.

4.   No legal grounds exist for refusing the decree.

In Sushila Bai v. Prem Narayan, AIR 1964 MP 225  case, the husband virtually dumped his wife and thereafter was totally unresponsive towards her. This behavior was held sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed.

The defense of this principle lies in the concept of a ‘reasonable excuse’. In Shakuntala v. Babu Rao, AIR 1963 MP  10, case the Court opined that if the respondent has withdrawn from the society of his spouse for a valid reason, it is a complete defense to a restitution petition. 

In Ranjana Kejriwal v. Vinod Kumar Kejriwal, AIR 1997 Bom 380 case, Petitioner Wife alleged that the husband was already married and had suppressed the fact from her. The Court held that the petition for restitution of conjugal rights is not maintainable since there is no legal marriage.

In Charanjit Kaur v. Sham Singh1958 Vol 1 HLR 1 case, it was held that mere suspicion of illicit relationship does not constitute a reasonable excuse.

Constitutional Validity of Section 9 of the Act:

The restitution of Conjugal Right violates the following rights:

• Right of privacy
• Right of Association – Article 19 (1) (c)
• Right to reside and settle in any part of India – 19(1) (e).
• Right to practice any profession – 19 (1) (g)

Violation of Right of Privacy:

The restitution of Conjugal Rights clearly violates the Right to privacy of the wife.

In Kharak Singh v. State of UP, AIR 1963 SC 1295 and Gobind v. State of M.P,  AIR 1975 SC 1378 cases the Court held that the right to privacy is an essential ingredient of personal liberty and right to privacy -among other rights is included in the right to liberty.

In T. Saritha Venkata Subhaiah v. State, AIR 1983 AP 356 case, a petition of restitution of conjugal right was filed by husband against his wife who was a famous South Indian actress. The Court held that S.9 of Hindu Marriage Act relating to restitution of conjugal rights as unconstitutional because this decree clearly snatches the privacy of wife by compelling her to live with her husband against her wish.

In Huhhram Vs Misri Bai, AIR 1979 MP 144 case,  the wife complained to the Court that her father-in-law has an evil eye on her and her husband ill-treated her. She also clearly stated that she would not wish to live with her husband, still, the court went ahead and gave the judgment in favour of the husband and the court passed the restitution against the will of the wife.

Ultimately Supreme Court in Saroj Rani v. Sudharshan, AIR 1984 SC 1562 case gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha case. The Court opined that “We are unable to accept the position that Section 9 of the Hindu Marriage Act is violative of Art. 14 and 21 of the Indian Constitution. Hindu Marriage is a sacrament and the object of section 9 is to offer an inducement for the husband and wife to live together in harmony. If such differences may arise as in this case, it may be a valid ground for divorce after a period of one year. Hence Section 9’s validity is upheld.”

Violation of Right to Select Profession and Right to Settle:

Constitution provides us with the right to choose a profession and to reside and settle in any part of India.

In Tirath Kaur v. Kirpal Singh 1964 Punj 28  case, at the instance of the husband the wife took up training and succeeded in obtaining a diploma in tailoring. Thereafter she got a job at a place which was at some distance from the husband’s house. The parties cohabited: sometimes the husband went to the wife’s place and lived with her and vice versa. This continued for some time. Later differences arose between them on some matter, and the husband asked the wife to resign the job and join him at his house. On the wife’s refusal to do so, the husband filed the petition for restitution. Justice Grover said that “under law, the wife could be allowed to withdraw ‘virtually’ from the society of the husband in this manner”.

In Gaya Prasad v. Bhagwati, AIR 1966 M.P. 212 case, the Court held that if a wife accepts employment without husband’s consent at a place different from the husband’s home and refuses to live with him at his place, it can be said that she has withdrawn from her husband’s society without reasonable excuse.

Conclusion:

When a person is separated emotionally from another, then it becomes really difficult to unite them. Thus, restitution of conjugal rights is such a matrimonial remedy, which will force the person to save the marriage but it cannot guarantee its effectiveness. Some section of people also says that it is against the concept of natural law theory and constitutional rights.

Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Restitution of Conjugal Right

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