RESTITUTION OF CONJUGAL RIGHTS
BY NUPUR GARG
Marriage is one of the main important vital roles in all human life. Every man and woman has
dreams about their marriage. After the marriage, the parties have some obligations to their
life. After the marriage, the sexual relationship between the husband and wife is also an
important part of the marriage. If any one of the parties like a husband or wife has withdrawn
from the society without any reasonable causes, the affected person may apply by petition to
the district court for the restitution of conjugal rights. If there is a reasonable cause the court
cannot decree the restitution of conjugal rights but if there is no reasonable cause the court
will grant a decree for the restitution of conjugal rights.
The conjugal rights are the rights to claim the both of the parties i.e., the husband as well as
the wife. Hindus can claim the restitution of conjugal rights under the Hindu marriage act,
1955, Muslims can claim under the General Law, Christians can claim under the Indian
Divorce Law, 1869, Parsis can claim under the Parsi Marriage and Divorce Act, 1969 and the
persons who married under the Special Marriage Act can claim under the Special Marriage
Section 9 of the Hindu Marriage Act (HMA), 1955 and Section 22 of the Special Marriage
Act (SMA), 1954 provides for restitution of conjugal rights which states that if a husband or a
wife has withdrawn from the society of the other without any reasonable excuse, then, the
aggrieved party can file a petition before the District Court for restitution of conjugal rights
i.e. to bring the spouse back to live with the other spouse. The court may grant a decree of
conjugal rights if it is satisfied that the petition is based on truth and there is no legal ground
for dismissing the petition.
CONSTITUTIONAL VALIDITY OF SECTION 9
Section 9 has always been in controversy regarding its constitutional validity. However, the
same was taken into consideration in true sense in 1983 by the Andhra Pradesh High Court.
In 1983, in the case of T. Sareetha vs T. Venkata Subbaiah, the High Court of Andhra
Pradesh struck down Section 9 of the Act declaring it null and void. It was decided by a
single judge bench, P. Choudhary, who held that it breaches the right to privacy as
cohabitation was an intimate matter and it was better if the couple decided rather than the
state. Another reason cited was that restitution of conjugal rights could result in forced sexual
cohabitation for women who would face grave consequences.
However, this decision was rescinded and a diametrically opposite view was taken by the
Delhi High Court in the same year in Harmander Kaur v Harvinder Singh Choudhry,
critiquing the stand taken by the Andhra Pradesh High Court. According to the Delhi High
Court, emphasis should not be given on sex rather on maintaining the relationship between
the two spouses which would be 'beneficial for the children and society'. The Delhi High
Court argued that the section aimed at consortium rather than cohabitation and sexual
intercourse was not the ultimate goal of marriage. Hence, the Supreme Court upheld the
decision of the Delhi High Court and overruled the decision of the Andhra Pradesh High
DEFENSE FOR RESTITUTION OF CONJUGAL RIGHTS:
When there is any reasonable cause for the separation between the spouses, the decree of the
restitution of conjugal rights is not granted by the court. For a reasonable excuse, there are no
hard and fast rules about it, and it may be decided by the court by means of justice, equity
and good conscience.
The followings are some of the examples of the reasonable excuses:
1. The petitioner has treated the other party with cruelty.
2. The petitioner has converted to other religions.
3. The petitioner has been suffering an incurable form of leprosy.
4. The petitioner has been of an unsound mind.
5. The petitioner has been suffering from venereal disease.
6. The petitioner has entered a religious order.
Whether the person has reasonable causes to withdraw from the society, the question arises,
the burden of proving the reasonable excuses shall be on the person who has withdrawn from
the society. Itwari vs. Asghari, in this case the petition filed against his first Muslim wife for
the restitution of conjugal rights. The court held that the husband cannot compel the wife to
live with him in his house. The husband cannot compel his wife because compulsion is also a
cruelty. So, the High Court has refused to provide the decree for the restitution of conjugal
rights against the wife.
Granting a decree for restitution of conjugal rights can compel spouses to live together but it
in no way can ensure an effective relationship. Further, if such a decree violates any
constitutional right, then it becomes extremely crucial to repeal it. With all the ambiguities
that lie within the sections pertaining to restitution of conjugal rights, it has become
extremely important for the Supreme Court to look into the matter and to ensure that this
right which is considered as a remedy does not violate somebody’s fundamental rights and in
case if it violates the fundamental rights, then the same must be held unconstitutional at the