Friday, 28 January 2022

Restitution of Congujal Rights


BY: Bishrant Khatiwada, SLS, Pune, Email:

It has also been reported that the rate of matrimonial disputes has been steadily increasing over the previous decade. Previously, marriage issues were not given much consideration. However, as circumstances have changed, a new stream of thinking has emerged in which different ways for resolving a marriage disagreement have been accepted.

Restitution of conjugal rights is a marital remedy provided to the hindus by the Hindus Marriage Act. The idea of combining a divorce petition with recovery of marital rights is currently being debated. Some of the most powerful jurisdictional authorities believe that a petition for marital rights might be accompanied with a divorce petition. While some believe that the divorce prayer and the petition for marital rights are of separate natures and cannot be combined. The majority of them believe that the petitions are mutually damaging since conjugal rights focus on reuniting the partners rather than separating them, and it is the sole positive remedy in the Hindu Marriage Act 1955, while other remedies attempt to break the marriage. In its literal definition, the word 'Conjugal Rights' means 'Right to Remain Together.'


Conjugal Rights Restitution, When either the husband or the wife has withdrawn from the other's society without reasonable cause, the aggrieved party may petition the district court for restitution of conjugal rights, and the court, if satisfied that the statements made in the petition are true and that there is no legal reason why the application should not be granted, may decree restitution of conjugal rights.

The three important conditins to be satisfied for Section 9 are:

  1. Spouses shouldn’t be staying together

  2. There must be no reasonable grounds for a party's withdrawal from the other.

  3. The person who has been wronged must file a claim for restitution of conjugal rights.

It should be mentioned that there is a claim that restoration of Conjugal Rights obviously breaches the wife's right to privacy. Although the Supreme Court has stated that the right to privacy "is a fundamental part of personal liberty" in Kharak Singh vs. State of Uttar Pradesh. However, in another case, Gobind v. State of M.P., the court was forced to address the concerns presented in Kharak Singh. In this decision, the Supreme Court determined that the right to privacy, among other things, is incorporated in the right to liberty.

The court decided in T. Saritha Vengata Subbiah v. State that S.9 of the Hindu Marriage Act, which deals with restitution of conjugal rights, is unconstitutional since it violates the privacy of the woman by forcing her to reside with her husband against her will. The court in Harvinder Kaur v. Harminder Singh returned to its initial approach and upheld Section 9 of the Hindu Marriage Act as totally legal. In Saroj Rani vs. S.K. Chadha, the court upheld the case's outcome. 

The matter of discussion at hand is that restitution of conjugal rights in current times is a remedy which has lost its relevance in matters of matrimonial disputes. 

Restitution of conjugal rihts is violative of the following:

  1. Freedom of Association (Article 19 (1) (c): Every individual in our country has the fundamental freedom to associate with whoever he or she choose. Freedom is infringed by the matrimonial remedy of restitution of conjugal rights since a wife is forced to associate with her husband against her desire. The court ordered reparation against the wife's will in Huhhram Vs Misri Bai. Despite the fact that the woman had said plainly that she did not want to live with her husband, the court decided in favour of the husband. In the case of Atma Ram v. Narbada Dev, the judge ruled in favour of the wife.

  2. Freedom to reside and get settled in any part of India-: We live in a culture where choosing a career is completely unrestricted. Under the restitution of conjugal rights, a person may be forced to live with a spouse in whom he or she has no general desire or interest. As a result, it appears that the right to freely dwell and pursue any profession is being infringed. Courts have attempted to provide a remedy on several occasions in the past. "Proposing the Constitutional Law in the Home is most unsuitable, it is like introducing a bill in a China shop," the Supreme Court declared in the case of Harvinder kaur v. State.

In conclusion, Conjugal Rights Restitution is a hotly debated and contentious topic. Some believe it is to keep the marriage together, while others argue that pressuring the other person to stay with the offended party is pointless since they are not interested. However, by adjusting anything, there is always room for improvement. When a person is emotionally estranged from another, it is extremely difficult to bring them back together. As a result, restitution of conjugal rights is a marital remedy that will compel a person to maintain their marriage but does not ensure its efficiency. Some argue that it is incompatible with the idea of natural law theory. In the modern world where consent, freedom and free will exist,  in such a world the existence of Restitution of conjugal rights will be violates of constitution and controversies will surround it hence it has been losing its relevance in the current world.

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