What is Restitution of Conjugal Rights?
Conjugal Rights are those (sexual) rights and privileges that are involved in a marital relationship. These rights and privileges are mostly an implied aspect of marriage. These essentially mean the right to stay or live together. Restitution of Conjugal Rights as the name suggests means, restoring the rights to live together.
Restitution of Conjugal Rights consists of 2 main words/phrases i.e. ‘Restitution’, and ‘Conjugal Rights’. Restitution typically means restoring or restitution of something that has been lost, and Conjugal Rights means the rights relating to the wedlock or the marriage or the relations between a husband and the wife.
If a partner has been deserted by the other, he/she can use restitution of conjugal rights against the other partner. The guilty partner, through an official order, can be asked to live together with the aggrieved partner. Restitution of Conjugal Rights is a process through which either party can gain certain specific legal rights against the other party. The main right is the right to live with the guilty party. As a remedy, the husband or the wife can file a petition and involve the court for restraining the conjugal rights between the spouses.
A decree for Restitution of conjugal Rights can be passed only in case of a valid marriage.
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Objective of Restitution of Conjugal Rights
In India, marriage is considered as a sacred institution. Even though there are many personal laws and marriage in India can be carried out under different rules for different religions, it is still considered to be a sacred union which is a framework so that the society can function well.
The fundamental ideology behind recognizing Restitution of Conjugal Rights is to protect the sanctity of the institution of marriage.
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Restitution of Conjugal Rights for Hindus under Hindu Marriage Act
As stated above, Conjugal rights are the sexual rights and obligations that are involved in a marriage. Under the Hindu laws, Restitution of Conjugal Rights (ROCR) is governed by Section 9 of the Hindu Marriage Act. Section 9 of the Hindu Marriage Act reads as below:
“When either the husband or the wife has, without reasonable excuse, withdrawn from the society for the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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”
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Essentials of Section 9 of Hindu Marriage Act
Section 9 of the Hindu Marriage Act can be termed as a “marriage saving” clause. When a spouse or a partner is guilty of living away without any reasonable clause, then Section 9 of the Hindu Marriage Act can be invoked. Under this Section, if certain conditions are fulfilled and the suit succeeds, the Court can order the couple to stay together. There are three important requisites that must be fulfilled for invoking and success under Section 9. These have been stated below:
The spouses must not be living together: An essential under Section 9 is that one partner must have withdrawn from the society of the other.
Withdrawal must be without any reasonable cause: The second essential is that the withdrawal of the partner from the society of the other must have happened without any reasonable excuse or explanation.
The aggrieved should apply for restitution of conjugal rights: The third and final essential to obtain Restitution of Conjugal Rights is to apply for it by filing a petition in an appropriate Court.
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Role of Court in deciding whether Restitution of Conjugal Rights shall be granted
The law (Section 9) states that when either the husband or the wife withdraws from the society of the other, the aggrieved party may apply to the Court for a direction that the other party should resume living with the other. A petition in this regard must be filed before the District Judge.
The burden of proof initially lies on the Petitioner. This means that the Petitioner must satisfy the court that the other party/spouse has without any reasonable excuse or explanation withdrawn from the petitioner’s society. Thus, the final say is the Court’s and until and unless the Court is satisfied, it will not give an order (in favour of the Petitioner) granting Restitution of Conjugal Rights.
Thus, the Court must be satisfied that the Petitioner has a bona fide desire to bring his/her partner back to him/her. If the Court finds out that the Petitioner’s conduct debars him/her from seeking relief of resuming life with his/her spouse, or if any fact or action shows that the Petitioner is taking advantage of his/her wrong, the Court will dismiss the Petition.
Similarly, if the Court is satisfied that the Petitioner has a good ground and the facts and circumstances stated in the petition are true and in favour of the Petitioner, the other party (Second party) will have to prove that the spouse withdrew from the Petitioner’s life for a reasonable excuse.
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Constitutional Validity of Section 9 of Hindu Marriage Act
There have been several contentions that Restitution of Conjugal Rights is unconstitutional i.e. it violates the Rights guaranteed by the Constitution of India. It is a contention that Restitution of Conjugal Rights violates the Right to Privacy (Article 21), Right to Freedom (Article 19), etc.
Initially, it was held by the Court that Section 9 of the Hindu Marriage Act was unconstitutional as it was clearly snatching away the privacy of the wife by compelling her to live with her husband against her wish. However, in a later landmark judgment, it was held that Section 9 was completely valid and that the main purpose for restitution of conjugal rights was that the husband and wife should not be separated without any reasonable excuses.
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Rights of Wife during pendency of Petition of Restitution of Conjugal Rights
During the pendency of the Petition of Restitution of Conjugal Rights, the wife may have a right to claim maintenance under Section 25 of the Hindu Marriage Act, 1955. If the Court is convinced that the wife deserves maintenance, the court will pass in order to that effect.
If the husband does not comply with the decree for one year, it can become a ground for divorce. The court can even attach the property of the husband in order to compel the husband to comply with the decree. If he does not obey the Order of the Court, he can also be punished for contempt of court.
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Restitution of Conjugal Rights under Muslim Law
The remedy of Restitution of Conjugal Rights is available to Muslims under personal law. Under Muslim law, the conceptualization of the provision for restitution of conjugal rights can be put together as follows
“Where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, may put either party on terms securing to the other the enjoyment of his or her rights”
Thus, this concept has been equated with securing the enjoyment of the legal rights of the other spouse. Previously, this was attached with the specific performance of a contract as well. Unlike other laws, a suit in a civil court has to be filed and not a petition as per Muslim Law.
When the marriage is valid, only then a petition for restitution of conjugal rights is maintainable. Relief of restitution of conjugal rights is an equitable relief and is discretionary.
When without any lawful cause, it is refused by the wife to live with her husband, he can sue for the restitution of conjugal rights and similarly the wife has the right to demand for the fulfilment of marital duties by the husband. But this is not an absolute right as the Muslim husband, being the dominant one in matrimonial matters, and as the Quran enjoins the husband to retain his wife with kindness or to dismiss her with kindness, the Court inclines in support of the wife and necessitates strict proof of all of the allegations that are necessary for matrimonial relief.
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When can Restitution of Conjugal Rights be refused under Muslim Law?
Defences for a petition for restitution of conjugal rights could be the grounds of void and irregular marriages, and other provisions under the Dissolution of Muslim Marriage Act, 1939. The suit for restitution of conjugal rights fails when the marriage has been avoided in the exercise of option of puberty, under Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939.
Controlled polygamy is allowed under Muslim Law, so the comfort-consortium to husband cannot be refused by the Muslim wife because of the second wife being taken by the husband. Though, in specific situations, the second marriage of the husband may comprise cruelty to the first wife, which then justifies her refusal to live with him.
Along with all other instances of cruelty, legal cruelty as well as physical cruelty are also included in the definition of ‘cruelty’ under Section 2 (viii) of the Dissolution of Muslim Marriage Act, 1939. If any of those instances of cruelty as laid down in this particular section are proved against the husband, then the relief of restitution of conjugal rights to the husband can be denied by the Court.
In the case of Itwari v Asghari, where a Muslim husband filed a restitution petition against his first wife, the Allahabad High Court on 29 August, 1959 held that it cannot force the wife to live with the husband and can refuse the relief if the court feels that it would not be reasonable and just to do or that passing the decree would be inequitable. Some High Courts have denied the relief of restitution of conjugal rights on the ground of considering the above as cruelty by the husband towards the wife.
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Restitution of Conjugal rights under Christian Law
Under Section 32 and 33 of the Indian Divorce Act, 1869, the remedy of restitution of conjugal rights is available to Christians.
A petition for restitution of conjugal rights by the husband/wife can be filed before the District Court or the High Court under Section 32 of the Indian Divorce Act, 1869, when either the husband or the wife, without reasonable excuse, withdraws himself/herself from the society of the other. Accordingly, the Court may decree restitution of conjugal rights on being satisfied of the truth of the statements made in such petition, and there being no legal ground why the application should not be granted.
Nothing which would not be a ground for a decree of nullity of marriage or a suit for judicial separation can be pleaded as a defence against a petition for restitution of conjugal rights under Section 33 of the Indian Divorce Act, 1869.
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Provision of Equitable Relief by Court while Passing the Decree
The relief obtained from the decree for restitution of conjugal rights is an equitable relief and thus equitable considerations must be deliberated before the defendant is compelled to return to the plaintiff for cohabitation.
However, the Court cannot pass the decree if there is presence of cruelty of the wife/husband, if the wife/husband is insane or if the wife/husband marries again.
It is required that at the time of marriage of Indian Christians, the bride should not be less than 18 years of age and the bridegroom should not be less than 21 years of age, as per Section 60(1) of the Indian Christian Marriage Act, 1872. The non-age does not lead the marriage to be voidable or void. The marriage, thus, remains a valid marriage and hence a decree for restitution of conjugal rights cannot be refused.
The existence of a co-wife is a sufficient cause which makes the withdrawal of the wife from the society of the husband valid, which can then be taken as a defence by the wife against a petition of restitution of conjugal rights.
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Decree of Restitution not Complied with could be a Ground for Divorce
Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the district court either by the husband or the wife be dissolved on the ground that since the solemnization of the marriage, the respondent has failed to comply with a decree for restitution of conjugal rights for a period of 2 years or more which was passed against such respondent, and that the Court has satisfied itself, not only as to the alleged fact, but also whether or not the petitioner had in any manner been connived at or had been an accessory to, the going through of the said form of marriage, or the adultery, or had condoned the same and shall also enquire into any counter-charge which may be made against the petitioner.
Restitution of Conjugal Rights under Parsi Law
For Parsis, the remedy of restitution of conjugal rights is available to them under Section 36 of the Parsi Marriage and Divorce Act, 1936, as stated below:
‘36. Suit for restitution of conjugal rights - Where a husband shall have deserted or without lawful cause ceased to cohabit with his wife, or where a wife shall have deserted or without lawful cause ceased to cohabit with her husband, the party so deserted or with whom cohabitation shall have so ceased may sue for the restitution of his or her conjugal rights and the Court, if satisfied of the truth of the allegations contained in the plaint, and that there is no just ground why relief should not be granted, may proceed to decree such restitution of conjugal rights accordingly.’
When, after passing of a decree for restitution of conjugal rights in a proceeding where the husband and wife were parties, for a period of one year or upwards, there has been non-resumption of cohabitation or restitution of conjugal rights, it could be taken as a ground for divorce under Section 32A of the Parsi Marriage and Divorce Act, 1936.
When there has been absolutely no resumption of cohabitation or no restitution of conjugal rights as between the husband and the wife for one full year or more, after the decree for judicial separation was passed where the husband and wife were parties against each other, either party to the marriage can take this as a ground for divorce and file a case for the same.
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Restitution of Conjugal Rights under Special Marriage Act, 1954
The Special Marriage Act is the Act that applies to inter-faith marriages, or Court marriages. Section 22 of the Special Marriage Act 1954 states that 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.
If the Court is satisfied of the truth of the statements made in the Petition and is assured that there is no legal ground why such application should be rejected, it will grant a decree for Restitution of Conjugal Rights.
Burden of Proof for Restitution of conjugal Rights
Where a question arises regarding the presence of a reasonable excuse for the withdrawal by one partner from the society of the other, the burden of proving that such reasonable excuse exists, lies on the person who has withdrawn from the society of the other.
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Procedure for Restitution of Conjugal Rights
The procedure for Restitution of Conjugal Rights has been stated below:
Consult a Lawyer- The first step that you should do is to hire a good family lawyer. A lawyer will be able to guide you in your case, after understanding the facts and circumstances of your particular matter. He/She will be able to guide you whether filing a Petition for Restitution of Conjugal Rights is a viable option or not.
File the Petition- Once it is decided to go for Restitution of Conjugal Rights, the aggrieved party can file an Restitution of Conjugal Rights Petition in the District Court, or a Court of proper jurisdiction. The lawyer will draft your petition after understanding your matter. The petition can even be transferred by an Application in the High Court or the supreme Court, as the case may be.
Copy of Petition to Partner- A copy of the Petition is to be sent to the Respondent i.e. the spouse, after a hearing from the District Court.
Presence before Court- On the next hearing, the Court will require both parties to be present in front of the Hon’ble Judge. If both the parties are not available, another date may be given upon which the Parties will have to show up.
Counseling- After hearing the counsels, the court may send both husband and wife for counseling. It is usually done by family courts and the couple are required to be present 3-4 times. The process of counseling could take 3 or 4 months.
Decree- Based on the proceedings in court, the counseling and after hearing both the parties and keeping in mind the conduct of the married couple, the Court finally grants the decree. In the decree, the Court may or may not order Restitution of Conjugal Rights.
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Where should a Restitution of Conjugal Rights Petition be filed?
A petition for Restitution of Conjugal Rights is to be filed in a district court (Civil Court) or a Court of proper jurisdiction, which is decided on the basis of the following:
In the Civil Court in whose jurisdiction the parties’ marriage was performed.
In the Civil Court in whose jurisdiction the husband and wife stay together.
In the Civil Court in whose jurisdiction the husband and wife last stayed together.
Things you need to Collect / Documents Required for Restitution of Conjugal Rights
The documents required and to be collected for the filing of the Petition are given below:
Address proof of the Petitioner
Identity Proof of the Petitioner
Proof of marriage
Photograph of the Petitioner
Birth Certificate of the Children (if need be)
Any evidence - calls / messages supporting that the partner left or withdrew from the society without reasonable excuse
Any evidence - calls/ messages stating that the spouse/partner left due to cruelty or because of some reasonable excuse.
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What if the Partner does not obey the Order of the Court Regarding Restitution of Conjugal Rights
If the decree in favour of Petitioner, ordering Restitution of Conjugal Rights has been passed by the Court and the Respondent/other party wilfully disobeys or does not follow the Decree, then the Petitioner has certain steps that he/she can take. The Petitioner has a right to file an application for execution of the decree under Order 21 Rule 32 of the Code of Civil Procedure 1908. According to this rule, if a party against whom a decree of Restitution of Conjugal Rights has been passed and has had an opportunity of obeying the decree and has willfully failed to do so, may be enforced by attachment of his/her property.
Thus, non-compliance can result in constructive deconstruction i.e. attachment of property. If the erring party still does not comply, he/she can be punished for contempt of court.
Moreover, if the parties do not follow the decree for cohabitation after passing of the decree continuously for over a year, then it can become a ground for divorce. In such a scenario the competent court can pass a decree of divorce on this ground.
When can Restitution of Conjugal Rights be Refused?
If the respondent is capable of claiming any matrimonial relief (in a matrimonial problem)
If either spouse marries again
If there has been an unreasonable delay in instituting a proceeding
If the Petitioner has committed any matrimonial misconduct
If there has been cruelty by either spouse or by their in-laws
If the Petitioner’s actions or behaviour makes it impossible for the Respondent or the other party to stay with him or her.
If there is sufficient and reasonable reason for the partner to stay away from their spouse, for eg. for completing studies, or due to transfer in service, etc.
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Can you seek Divorce on the basis of Restitution of Conjugal Rights?
A Petition for Restitution of Conjugal Rights is filed in order to get both the husband and wife to resume cohabitation by way of a Court order. The Court order directs the deserting partner to return to the matrimonial home and fulfil their duties as husband and wife. Thus, essentially, a divorce and Restitution of conjugal Rights seek different ends, and prayers in both petitions are mutually destructive. Hence, in a petition for Restitution of Conjugal Rights, an alternative relief of divorce cannot be claimed, and cannot be prayed for together.
However, if a decree for Restitution of Conjugal Rights has been passed, and the parties do not follow the same for over a year, then it becomes a ground for divorce. This is when the parties can get a divorced on the basis of Restitution of Conjugal Rights.
Five things you need to do for Restitution of Conjugal Rights
Consult or hire a good family lawyer
Be ready with the facts of your case to discuss with your lawyer
Collect necessary documents and evidence to be filed or presented in court
Appear before the Court on the dates of hearings
If the decree is filed in your favour for Restitution of Conjugal Rights, ensure the other partner is complying with it. If not, be ready to file for execution / contempt / divorce as the case may be.
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Lawyer Advice: “I want divorce but husband filed for restitution of conjugal rights”
The lawyer would advise you to appear before the Hon’ble judge and with the help of your family lawyer, reply with your reasons for not living jointly and for seeking divorce. You may need to file an additional petition and if need be (in case of violence), file a police complaint simultaneously. If you have good reasons and grounds for divorce and if the Court is convinced that your marriage has no point of conciliation and if there is an irretrievable breakdown of your marriage, the Court may order for Divorce.
Testimonials
1. “My husband went for a business trip out of town on a promise to return after a month. However, he deserted me and did not return for 6 months. I came to know that he was living in the same city but was only ‘taking a break. This is when I realised that something is wrong and consulted a lawyer. The lawyer advised me to file a petition for Restitution of Conjugal Rights as the last remedy. I took his advice and knocked on the doors of the Court. After careful consideration the Court ordered in my favour and gave a decree for Restitution of Conjugal Rights.”
Mrs. Priya Kumar
2. “My wife went to her father’s house and did not return for many months. After consulting my advocate I filed Restitution of Conjugal Rights in the Court. The Court ordered Restitution of Conjugal Rights, however, even then, she refused to come back and live in our matrimonial home. This went on for 1 year and 6 months, after which we decided to file for Divorce and got a divorce on the ground that even after the court order in the favour of Restitution of Conjugal Rights, we did not resume living together.”
Mr Ashish Tandon
3. “My husband left me after 40 days of our marriage and since the last 4 months I have been living with my parents in my parents’ home. I consulted a lawyer from LawRato.com and after discussing my matter at length the lawyer gave me the advice to file Restitution of Conjugal Rights i.e. Section 9 petition in court, which my lawyer drafted and filed. It is pending in Court as of now and I am hoping a decree in my favour will be ordered by Court.”
Ms. Davina D’souza
4. “I left my matrimonial home for a period of 6 months after discussing with my wife and could not live with her as I was doing my job in another city. My wife filed a Restitution of Conjugal Rights petition against me. However, I consulted a lawyer and presented my facts and arguments with my lawyer’s help. The Court understood that my reason for deserting my wife was valid and only for my job which was financially supporting my wife and one child born out of our marriage. Thus, the Court ordered that I had a reasonable excuse to live away and did not order for Restitution of Conjugal Rights and instead passed a decree in my favour.”
Mr. Tanveer Pratap singh
5. “I left my husband and went to my parents home with my children because he used to beat me up and because of him I was depressed. He filed Restitution of conjugal Rights against me because he wanted me to go back to his house. However, with the help of my lawyer, I convinced the Court that it was cruelty on his part and that living with him is only harmful for me and my children. The Court after seeing my position, passed a decree in my favour and did not order for Restitution of Conjugal Rights? I filed another petition for divorce on the ground of cruelty which is pending before the Court right now.”
Ms. Rekha Patil
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How can a Lawyer help you in Restitution of Conjugal Rights?
Desertion by your partner can be a stressful time. Hiring an attorney to understand if Restitution of Conjugal Rights is possible will be a major step towards reducing the stress. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced family lawyer can give you expert advice on how to handle your case owing to his years of experience in handling such matters. A family lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he/she can avoid delay and get the Court to order your partner to resume cohabitation as quickly as possible. You need to hire an attorney to defend you in case a Restitution of Conjugal Rights case has been filed against you.
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Landmark Judgments/Cases regarding Restitution of Conjugal Rights
1. Moonshee Buzloor v. Shumsoonissa Begum
1866, II M.I.A. 551 P.C
The concept of Restitution of Conjugal Rights was introduced in India in the case of Moonshee Buzloor v. Shumsoonissa Begum, where such actions were regarded as considerations for specific performance.
FACTS: The husband disposed of the property of his wife and misbehaved with her. She was compelled to withdraw from society of her husband. The husband sought the recovery of his wife under the Specific Relief Act. The wife contended that neither the Islamic laws nor the principles of justice permitted the custody of his wife. In the appeal, the husband claimed that under Islamic law a wife did not have the right to live separately even if the husband misbehaved.
HELD: When a wife without lawful reasons ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights. It was clarified that the suits for restitution have to be carried out under the Muslim law and the equity and good conscience were used only to supplement the Muslim law where texts were not available.
2. Tirath Kaur v. Kirpal Singh
1964 Punj 28
FACTS: 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.
HELD: The High Court held that the refusal by one spouse to give to his/her job and live with the other leads to withdrawing the society of the other. The Hon’ble Court said that the husband was justified in asking the wife to live with him even if she had to give up service but as she was not prepared' to do so on any condition whatsoever and the Conjugal, duties could not be performed by living at such a distance, the husband was entitled to the restitution claim.
Further, the High Court held that the wife's first duty is to submit herself to the husband and remain under his roof and protection. Justice Grover said that “under law, the wife could be allowed to withdraw ‘virtually’ from the society of the husband in this manner”.
This judgment given by the Punjab High Court attracted a lot of criticism on the restitution of conjugal rights’ constitutional validity.
3. Sushila Bai v. Prem Narayan
AIR 1964 MP 225
Wife-appellant filed an application under Section 9 of the Hindu Marriage Act in the Court of the District Judge, Gwalior and prayed for a decree for restitution of conjugal rights. The facts disclosed in this application were that she was married to the respondent on 28th June, 1972 and after marriage, both lived together. During this period, she was mistreated and assaulted by the respondent and ultimately, on 1st May, 1977, the respondent abandoned her in her parental home with the instructions not to send her to him, unless called for. Several letters were sent by her parents to respondent, requesting to take the appellant back, but the requests remained unanswered.
Respondent, in his reply, admitted the factum of marriage, but repudiated the allegations of cruelty. He also denied that he has abandoned the wife and left her in the residence of his in-laws. Respondent pleaded desertion on the part of his wife.
Here, the Respondent-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.
During the time of introducing the provision for restitution of conjugal rights in the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the Parliament for and against it.
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4. Shakila Banu v. Gulam Mustafa
AIR 1971 Bom 166
The Hon’ble High Court observed: “The concept of restitution of conjugal rights is a relic of ancient times when slavery or quasislavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”
5. T. Sareetha v. Venkatasubbaiah
AIR 1983 AP 356
The question of constitutional validity of S.9 for the first time came up in came up in the case of T Sareeta v Venkatasubbiah .
FACTS: Sareetha, a well-known actress of the South Indian film industry was alleged to have been given in marriage to Venkata Subbaiah at Tirupathi on December 13th, 1975. Immediately thereafter, they were separated from each other and have been living apart from each other for more than five years. Venkata Subbaiah filed for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 at the sub-court, Cuddapah. It was the contention of Sareetha that the Sub-Court, Cuddapah had no jurisdiction over the matter, as the marriage took place at Tirrupathi and the couple last resided together at Madras. It was Venkata’s contention that the couple lived together in Cuddapah for six months and thereafter went to Madras and lived there with Sareetha’s parents for some time.
Here the husband had himself asked the Court to pass a decree of restitution of conjugal rights and after completion of a year he filed a petition for divorce on the ground that the decree has not been complied to. The Sub-Court overruled Sareetha’s preliminary objection, and Sareetha filed a Civil Revision Petition against the order of the Sub-Court. The wife challenged the constitutional validity of S.9 of the Act.
HELD: The Court held that the Subordinate Judge was right in holding that the parties lived at the house of Venkata at Cuddapah as Venkata Subbaiah had specifically pleaded this and Sareetha failed to specifically deny this averment. The Civil Revision Petition was allowed. Section 9 of the Hindu Marriage Act, 1955 was declared null and void.
Justice Chaudhary of the Andhra Pradesh High Court held S. 9 to be “savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution, hence void”.
Chaudhary J. stated that section 9 imposes “sexual cohabitation between unwilling, opposite sexual partners.” He called it “forced sex”, “coerced sex” and “forcible marital intercourse”. He went on to hold that the state interference in personal rights destroyed the “sexual autonomy” and “reproductive autonomy” of the individual. A wife who is keeping away from her husband, because of a permanent or temporary arrangement, cannot be forced, without violating her right to privacy, to bear a child by her husband.
6. Harvinder Kaur v. Harmendar Singh
AIR 1983 Del 66
The decision of the Hon’ble High Court in this case was upheld by the Supreme Court in the case of Saroj Rani and this case effectively overruled the precedent set by J.Chaudhary in Sareetha.
FACTS: Harvinder Kaur who is the appellant was married to Harmandar Singh Choudhry who is the respondent. They were married on the 10th of October, 1976. They both were independent and had jobs of their own. They had a son who was born to them on the 14th of July, 1978. They both started living on their own and separately as the appellant left the house accusing the respondent that is her husband and his mother of malpractice and maltreatment. Due to these circumstances the husband applied for a petition under Section 9 the Hindu Marriage Act, 1955 which seeks and exemplifies the restitution of conjugal rights. The Additional District Judge ruled in favor of the husband and granted a decree of restitution of conjugal rights to him. The other party challenged the validity and significance of the constitutionality of the section 9 of the Hindu Marriage Act. The wife also raised an objection pertaining to the jurisdiction of the court.
HELD: The constitutionality of Section 9 was upheld and the judgment in Sareetha overruled. The court justified the alleged violations of the ‘Equality Protection’ and the ‘Right to Life and Liberty’ by giving a more wholesome definition to the aspect of ‘Restitution of Conjugal Rights’. The purpose of restitution of conjugal rights was emphasized as providing impetus to the undo any damage done to their marriage to couples who’ve withdrawn from the societies of each other. The concept of marriage was emphasized as to include the ideas of both ‘contract’ and ‘sacrament’ and therefore, it was argued that such special obligations demanded that the institution of marriage should not be easily amenable to break down. Sexual intercourse was not the summum bonnum of a marriage and was only one of the elements.
Section 9 of the Hindu Marriage Act, 1955, does not violate Article 14 and Article 21 of the Indian Constitution since the main reason behind the foundation of Section 9 was to preserve the marriage. The remedy of restitution of conjugal rights does not merely aim on sexual intercourse between married couples, but on cohabitation and consortium to exist between them.
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7. Saroj Rani v. Sudharshan Kumar Chadha
AIR 1984 SC 1562
Supreme Court in Saroj Rani v. Sudharshan gave a judgment which upheld the constitutional validity of Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah
FACTS: The wife-appellant filed a suit against the husband-respondent under Section 9 of the Hindu Marriage Act 1955, for restitution of conjugal rights. Though the respondent contested the petition contending that he had neither turned the appellant out from his house nor withdrawn from her society later as he made a statement in the Court that the application under Section 9 be granted; a consent decree was passed by the Sub-Judge for the restitution of conjugal rights between the parties.
After a lapse of a year, the respondent-husband filed a petition under Section 13 of the Act against the appellant for divorce on the ground that though one year had lapsed from the date of passing the decree for restitution of conjugal rights no actual co-habitation had taken place between the parties.
The District Judge after considering the evidence of the civil and criminal proceedings pending between the parties, came to the conclusion that there had been no resumption of cohabitation between the parties. It was held that as the decree for restitution of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce.
The respondent filed an appeal. A Single Judge of the High Court held that it could not be said that the husband was taking advantage of his 'wrongs', but however expressed the view that the decree for restitution of conjugal rights could not be passed with the consent of the parties, and therefore being a collusive one disentitled the husband to a decree for divorce, and referred the matter to the Chief Justice for constitution of a Division Bench for consideration of the question.
The Division Bench held that a consent decree could not be termed to be a collusive, decree so as to disentitle the petitioner to a decree for restitution of conjugal rights. The appeal was allowed, and the husband granted a decree of divorce.
The wife appealed before the Hon’ble Supreme Court of India.
HELD:
1. In India conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself. There are sufficient safeguards in Section 9 of the Hindu Marriage Act to prevent it from being a tyranny.
2. Section 9 is only a codification of pre-existing law. Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an injunction.
3.Section 9 of the Act is not violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of execution in cases of disobedience is kept in view.
4. It is significant that unlike a decree of specific performance of contract; a decree for restitution of conjugal rights, where the disobedience to such a decree is willful i.e. is deliberate, might be enforced by attachment of property. Where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only the properties have to be attached, is provided for. This is so to enable the Court in appropriate cases when the Court has decreed restitution for conjugal rights to offer inducement for the husband or wife to live together and to settle up the matter amicably. It serves a social purpose, as an aid to the prevention of break-up of marriage.
5. (i) Even after the final decree of divorce the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage. Separate maintenance should be paid for the wife and the living daughter. Wife would be entitled to such maintenance only until she remarries and the daughter to her maintenance until she is married.
Thus the Court granted the divorce but at the same time understanding the situation of the wife and daughters, ordered the husband to pay prescribed maintenance to the wife until she remarries. The Hon’ble Court has thus considered the interests of both parties and maintained harmony in this area.
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News regarding Restitution of Conjugal Rights:
1. Woman’s plea for Restitution of Conjugal Rights rejected by the High Court stating that it would serve no useful purpose
The High Court of Madras rejected a woman’s plea for restitution of conjugal rights stating that no useful purpose would be served in compelling the husband to return to the wife for co-habitation as 18 years had already passed since the wife had been living away from her estranged husband. It was held that after such a gap of 18 years, union with the estranged husband would not serve any purpose.
In 2011 a divorce decree was passed by a Subordinate Judge in Kancheepuram and later in April 2014 upheld by the District Judge. The divorce decree was passed at the husband’s instance, though the wife was seemingly intending for their re-union. The wife appealed against the decree before the Hon’ble High Court which was eventually dismissed by Justice T. Raja.
The wife appealed against the decisions of the lower courts stating that an untrue inference had been reached by them that it was the wife who had uninhabited the husband, which was not the actuality. It was also purported by the wife that since their marriage in 2001, dowry was being demanded by the husband.
Although, on perusal of the records, it was found out by Justice T. Raja that because of the wife’s unwavering attitude who had contended to set up a separate residence away from the parents of her husband, marriage between the couple was not consummated for the preceding 18 years.
Keeping in mind the separation of the couple for 18 long years, in the present case it was said by the judge that “matrimonial life has become meaningless”, stating that the one-sided decision of the partner to avoid sexual intercourse would lead to the other partner being subjected to mental cruelty.
2. Cannot file for Divorce and also Demand Restitution of Conjugal Rights; Says Gujarat HC
An order by the Bhuj Family Court ordering a woman living in London to return to India and fulfil her matrimonial duties was quashed by the Gujarat High Court. An appeal by the woman against the Bhuj Court’s order on the husband’s request for Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act was accepted by the High Court. It was considered by the High Court that only because the woman had left India due to the harassment and chose to live in the United Kingdom with her daughter did not establish that she had withdrawn from her husband’s society.
Husband’s behaviour was also considered by the High Court. Once he obtained the Family court’s order for Restitution of Conjugal Rights and return of wife to India to live with her husband, he waited for her to return, and when she did not, he also filed for divorce in a UK Court in January 2020. The High Court held that the husband cannot seek divorce on one hand and force his wife to come to India to live with him and fulfill her matrimonial duties on the other hand.
The wife had filed a complaint in Bhuj court accusing her husband and in-laws of domestic violence. She also filed for a divorce in bhuj but withdrew her application the next year. The husband, however, approached the Court for Restitution of Conjugal Rights where he accused the woman of wilful desertion.
Husband’s argument that his wife should not live in London and join him back in Bhuj was accepted by the Bhuj Court. The High Court, however, found that the Bhuj Family Court’s order was without proper basis and quashed it.
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Format or Draft of Petition for Restitution of Conjugal Rights
A sample or draft or format for a petition for Restitution of Conjugal Rights that has to be filed in a Court of appropriate jurisdiction has been given below:
IN THE COURT OF THE _____________ JUDGE AT _________
MATRIMONIAL CASE NO. __________ OF 20__
IN THE MATTER OF:
Mr. _________________________________________________________ PETITIONER
VERSUS
MRS. _______________________________________________________ RESPONDENT
PETITION UNDER SECTION 9 OF HINDU MARRIAGE ACT 1955 FOR RESTITUTION OF CONJUGAL RIGHTS
MOST RESPECTFULLY SHOWETH:
The Petitioner, above named states as under:
1. That marriage of the Petitioner and the Respondent was solemnized on __________ at ____________ according to Hindu/Christian/Parsi rites and ceremonies. The marriage was registered with the Registrar of marriages at ___________. The certified copy of the extract from the concerned register is attached herewith as Annexure P1.
2. That the status and place of residence of the Parties to the marriage before the marriage and at the time of filing this petition is given as under:
i) Place of residence before the Marriage: _________
ii) Place of residence at the time of filing the Petition: __________
3. That from this marriage, the couple has been blessed with ________ number of children; _____boys aged __ years and ____ girl child aged ___ years.
4. That the Petitioner and his wife were living together at _____. That on _______, the respondent left the house to go to _____at _______. She/He gave word to return within 15 days, but she/he did not abide by her/his word and has not returned so far. The Respondent without any reasonable excuse has been living afar since the past _____ days.
5. That the petitioner went to _______ to bring the respondent, a number of times, but on one pretext or the other, she/he declined to come along with the petitioner to her/his/their house.
6. That the respondent deserted the petitioner or/and has withdrawn from her/his company without any reasonable or lawful excuse. Hence the necessity for the petition arose.
9. The Petition is not being presented in collusion with the Respondent.
10. The Petition is being presented without any unnecessary or improper delay on the part of the Petitioner.
11. There is no other legal ground as to why the decree of restitution of conjugal rights be not granted in favour of the Petitioner.
12. That no litigation has taken place between the parties to the Petition earlier.
13. This Hon'ble Court has jurisdiction to entertain and try this Petition as the marriage was solemnized at ____________ the parties last resided together at _____________ and even presently the respondent is residing within the Jurisdiction of this Hon'ble Court.
14. That the cause of action accrued to the petitioner against the respondent, within the jurisdiction of this Court, on _______ when the respondent left for _______ at _______ and it continues to accrue from day to day till the respondent comes back to the home of the petitioner and resumes her/his company..
15. In the facts and circumstances of case mentioned herein above this Hon'ble Court may graciously be pleased to:
P R A Y E R
That the Petitioner, therefore, prays:
a) for grant of decree for restitution of conjugal rights in favour of Petition and against the respondent; and
b) Any other relief or reliefs which the court may deem proper under the circumstances be also awarded to the petitioner.
PETITIONER
THROUGH
______________., Advocate
Place :
Date :
VERIFICATION
I, the above named petitioner, do hereby verify that the contents of this petition in Para No ______ to Para No __________ are true to my personal knowledge and those in Para No _____ to Para No ________ are believed by me to be true.
Signed and verified this _______ day of _______ 20 _______ at _______
PETITIONER
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