HINDU MARRIAGE ACT
TOPIC :
RESTITUTION OF CONJUGAL
RIGHTS
UNDER SECTION 9
SUBMITTED BY :-
VISHAL CHAURASIA
18/ILB/105
ORIGIN
The principle of restitution of conjugal rights has been borrowed
into Indian laws from English law. In English law, wife and husband
were treated as a single entity and therefore a wife could not sue
her husband or vice versa. The remedy for restitution for conjugal
rights owes its origin to the Ecclesiastical Courts of the West. Such
courts by decree of restitution of conjugal rights compelled the
recalcitrant spouse to discharge the due obligation towards the
complaining spouse.
MEANING OF RESTITUTION OF CONJUGAL
RIGHTS
Restitution of conjugal rights basically comprises of two major words, “restitution” and
“conjugal right”.
• Restitution: the restoration of something lost.
• Conjugal right: rights relating to marriage or the relationship between husband and wife.
If either party to a marriage withdraws from the society of the other without reasonable
cause, the aggrieved party has a right to file a petition claiming relief for restitution of
conjugal rights. The court will grant the relief if there is no legal bar to such decree.
There is withdrawal from society when one of the spouses, without reasonable excuse,
terminates an existing relationship with the intention of forsaking the other, and
permanently or indefinitely abandoning such relationship. Thus, while a husband and
wife might be at times living apart, but maintaining a frequent and regular social and
conjugal relationship, in such a case there would be no withdrawal from society. So after
the solemnization of the marriage if either of the spouses without reasonable excuse
withdraws himself or herself from the society of the other then aggrieved party has a
legal right to file a petition in the matrimonial court for restitution of conjugal rights.
SECTION 9
When either the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other, the aggrieved
party may apply, by the 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.
CONSTITUTIONALITY OF SECTION 9
T. Sareetha v. Venkata Subbaiah 1983, court held that the Andhra Pradesh
high court has observed that the remedy of restitution of conjugal rights is a
violation of right to privacy and human dignity guaranteed by article 21 of the
constitution.
However in Smt. Harvinder Kaur v. Harmander Singh 1984, the Delhi high
court observed that section 9 of the Hindu Marriage Act is not violative of
articles 14 and 21 of the constitution.
In Saroj Rani v. Sudarshan Kumar 1991, the supreme court observed that
section 9 of this act cannot be said as violative of articles 14 and 21 of the
constitution if the purpose of the decree of restitution of conjugal rights is
understood in its proper perspective.
THREE ESSENTIAL CONDITIONS FOR SECTION
9 OF HINDU MARRIAGE ACT 1955
Firstly, parties should be legally bound in marital obligations and duties,
Secondly, one party must have withdrawn from the society of the other,
Thirdly, the withdrawal must be without any reasonable excuse,
Fourthly, the aggrieved party applies for the restitution of conjugal rights.
Once these conditions are fulfilled, the district court may pass the decree of
restitution of conjugal rights to bring about cohabitation between the separated
parties.
VALID GROUNDS FOR SEPARATE LIVING
DISENTITLING THE OTHER SPOUSE TO A DECREE OF
RESTITUTION OF CONJUGAL RIGHTS
Harvinder kaur v. Harminder kaur, air 1984 & pushpa rani v. Vijay pal singh, air 1994 court
held that,
Grossly indecent behavior,
Extravagance of living on part of wife affecting financial position and prospect of
husband,
Excessive drinking to such extent to render impossible to discharge marital duties,
Persistence in a false charge against the respondent of having committed an unnatural
offence,
Refusal of marital intercourse without sufficient reason,
Apprehension of violence due to development of insanity,
Agreement to live separately,
Misconduct approaching cruelty but falling short of it,
Imputation of unchastity by the husband persistently,
BURDEN OF PROOF
Burden of proof operates at two levels :
Firstly, burden of proof is on the aggrieved/petitioner who needs
to prove that the respondent has withdrawn from his society.
Once that burden is discharged by the petitioner,
It falls on the respondent to prove that there exists a reasonable
excuse for the withdrawn.
In the case of Deepa Suyal v. Dinesh Chandra Suyal 1993 court held
that, burden of proof lies on the party who withdrawn from the
marital obligations.
WHAT IF PARTIES DID NOT COHABIT AFTER
PASSING DECREE?
If the parties are not following the decree for cohabitation after
the passing, continuously for one year, it becomes a ground for
divorce under section 13 (1a)(ii) on the ground of non-
compliance with the decree.
In fact, justice Rostagi in Harvinder Kaur v. Harminder Singh,1984
recognized that “the legislature has created restitution of conjugal
rights as an additional ground for divorce”.
CONCLUSION
It is a remedy that is aimed at preserving the marriage and not at
disrupting it as in the case of divorce or judicial separation.
The court cannot compel the defaulting spouse to physically
return to the comfort-consortium of the decree-holder spouse
