Friday, 11 February 2022

Restitution of Conjugal Rights

 Restitution of Conjugal Rights

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. The necessary implication of marriage is that parties will live together. Each spouse is entitled to comfort consortium of the other. So after the solemnisation 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. 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 of the truth of the statements made in the petition may pass a decree of restitution of conjugal rights.

A husband has the legal right to make his wife live with him wherever he chooses to live. On the other side, it is the wife's responsibility to live with her husband. There may be situations, however, that force the couples to reside in separate locations. These conditions may provide a legitimate or justifiable justification for the wife to relocate. It is up to the Court to judge if the wife's circumstances allow her to live away from her husband.

When either husband or wife withdraws from the other's company, the aggrieved party may petition the court for a court order requiring the other person to live with him or her (Section 9 of the Hindu Marriage Act). Such a petition is to be filed before the District Judge. The petitioner must show the Court that the other person has left his or her society without justification. So, if your wife has withdrawn from your society without fair cause, you may petition the District Judge for such relief. When you submit such a petition, the court must be convinced that you have a genuine wish to bring your spouse into your business. Remember, if the Court believes that your own behaviour precludes you from obtaining this remedy in your spouse's company, or if a fact demonstrates that you are abusing your own wrong, the Court will dismiss your petition.

In Sushila Bai v. Prem Narayan, the husband deserted his wife and thereafter was totally unresponsive towards her. This behaviour was held sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed.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 defence to this principle lies in the concept of a ‘reasonable excuse’. If the respondent has withdrawn from the society of his spouse for a valid reason, it is a complete defence to a restitution petition. The court will normally order restitution of conjugal rights if:


The petitioner proves that the respondent spouse has without reasonable excuse withdrawn from his/her society

The statements made by the aggrieved spouse in the application are true, and

There is no legal ground why the petitioner’s prayer should not be granted.

The court has held in various cases that the following situations will amount to a reasonable excuse to act as a defence in this area:


A ground for relief in any matrimonial cause.

A matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficiently weighty and grave

Such an act, omission or conduct which makes it impossible for the petitioner to live with the respondent.

It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights, the sanction is provided by the court where the disobedience to such a decree is willful that is deliberate, in spite of opportunities.


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