This article deals with the concept of restitution of conjugal rights under Hindu law. The term restitution, etymologically, means restoration. This concept comes into place when one of the spouses denies any of the marital rights to the other spouse. For instance, if a husband denies his wife to stay with him under the same roof, it is… Read More »

This article deals with the concept of restitution of conjugal rights under Hindu law. The term restitution, etymologically, means restoration. This concept comes into place when one of the spouses denies any of the marital rights to the other spouse. For instance, if a husband denies his wife to stay with him under the same roof, it is a violation of conjugal rights. I. Introduction Among Hindus, marriage is the most sacred bond in which two persons who are duly wedded have religious...

This article deals with the concept of restitution of conjugal rights under Hindu law. The term restitution, etymologically, means restoration.

This concept comes into place when one of the spouses denies any of the marital rights to the other spouse. For instance, if a husband denies his wife to stay with him under the same roof, it is a violation of conjugal rights.

I. Introduction

Among Hindus, marriage is the most sacred bond in which two persons who are duly wedded have religious and marital responsibilities. One of the major responsibilities of the couple is that both should cohabitate. But as marriage is the bond of two persons, it is possible that both of them have different responses and one doesn’t like the behaviour of the other person.

In this case, one of the spouses may start living separate and withdraw from the society of the other with or without any valid ground. Due to these circumstances, the Hindu Marriage Act,1955 provides for the restitution of conjugal right under Section 9.

A party who wants the other person to fulfil his/her conjugal duties toward him/her self in Hindu marriage, may file a complaint in the court under this section. For the party who is not performing his/her duties, the court may direct that party to fulfil the conjugal duties in marriage, if a valid purpose is not specified.

II. Concept Of Restitution Of Conjugal Rights In Hindu Law

Conjugal Rights: In the Hindu religion, marriage is performed by following certain ceremonies and rites, and these ceremonies put responsibilities and obligations on both the wife and husband which are important to be fulfilled. These responsibilities are to be fulfilled by both the spouses in relation to each other. Some of the important conjugal rights include that both should cohabitate, beget a child, development of a household, etc.

Therefore ‘Restitution of Conjugal Rights’ means that the recompense of such rights which are originated from the Hindu Marriage.

In old times there was no law regarding the restitution of the conjugal rights, it was first introduced in Jewish law. After Independence, the Hindu Marriage Act,1955 was introduced in which such treatment or relief is specified under section 9 of the act, and from here restitution of conjugal rights got its statutory sponsorship.

Section 9 of the Hindu Marriage Act,1955 provided for the restitution of marriage. According to this section, if any person in marriage ends the relationship with the other person and his/her society without any rational purpose then the party against whom such relation is ended, can file suit in the District Court under this section of the Restitution of the Conjugal rights.

Then if the court is convinced that there is no rational purpose of ending such a relation, it shall pass a decree of restitution of Conjugal rights which is to direct the respondent to execute his/her responsibilities and obligations. Onus probandi is of the Party of marriage who is separated.

It also can be termed as saving marriage which could end through a divorce, as there may be some differences between the husband and wife and if the spouse thinks that such differences can be solved rather than terminating the marriage through a divorce, then restitution of the conjugal rights comes into play.

It must be noted that this section can only apply on valid marriages and if the decree of restitution of conjugal rights is not obeyed then it would amount to contempt of court.

In Ranjana Kejriwal v. Vinod Kumar Kejriwal[1], a petition was filed by the wife stating that the husband was married at the moment of marriage, the court dismissed the plea on the ground that the marriage is not licit.

According to various judicial precedents, the petitioner can file the plea of restitution of conjugal right under section 9 of this act, if there is a presence of these essential conditions:

  • Spouse is not cohabitating
  • No rational purpose stated by the spouse for the separation.
  • No legitimate ground on which order of restitution of conjugal rights cannot be granted.

In Sushila Bai v. Prem Narayan[2], the court passed the order of restitution as per the requirements stated above. In this case, the court also mentioned some Circumstances in which the respondent can take his/her guard in the plea filed by the petitioner:

  • Another party against whom the suit was filed can claim conjugal relief against the petitioner.
  • The respondent can prove that the petitioner is at fault i.e party can prove the rational purpose of his/her separation.
  • As a result of some acts or omissions, it is unfeasible for the respondent to cohabitate with the petitioner.

These are some state of affairs on which court rather than passing an order for restitution, can pass an order of Divorce or Judicial separation under section 13 and section 10 of the Hindu Marriage Act,1955.

III. The Burden of Proof

In the case of restitution of Conjugal rights, onus generally lies with the party who has evacuated from the company of the other party to the marriage, Onus is to show that the purpose for such evacuation is rational. But at the beginning of the suit, the onus is on the petitioner to show that there is a need for the restitution, only then the burden of proof gets transferred to the respondent[3].

In the Sushila bai case (discussed above), the husband after marriage was completely insensitive towards his wife and treated her in an uninvited way, the court held that it is sufficient ground to maintain the plea of restitution and the same had been granted in this case.

IV. Constitutional Validity of the Restitution of Conjugal Rights

It is noted that such restitution breaches the right to privacy of the respondent which is granted under Article 21 of the Indian Constitution.

Important Judgements

With the judgment in Kharak Singh v. State of UP[4], it was declared by the court that the right to life and personal liberty includes right to privacy. When this law was to be included under the Hindu Marriage Act,1955 there were intense arguments in the parliament.

In Sareetha v. T. Venkatasubbaiah[5], it was contended by the petitioner that section 9 of the Hindu Marriage Act,1955 breaches Article 14 (right to equality) and Article 21 ( right to life and personal liberty). The Hon’ble High Court held that section 9 of this act breaches the fundamental rights given by our constitution as this act is bestial especially for women as it snatches the right of the women on her own body. Therefore, section 9 was held unconstitutional.

But in Saroj Rani v. Sudharshan[6], the Hon’ble Supreme Court revoked the order of Sareetha v. T. Venkatasubbaiah and held that it is the duty of the legislature to invalidate the law and section 9 has the main purpose of bringing together separated parties of the Hindu Marriage and not to infringe the fundamental rights of the party. Hence, section 9 was declared as Constitutionally valid.

In Narinder Kumar v. Chander Prabha[7], the court held that if Husband put pressure on his wife for dowry then it will be considered as a rational purpose for evacuating herself from the Husband’s company.

V. Other Provisions related to restitution and its mode of execution under the Hindu Marriage Act,1955

Hindu marriage act along with the provisions of restitution of conjugal rights also allows the petitioner to file plaint for the monetary support under section 25 of the act. Therefore, if the wife is unwilling to get judicial separation or nullity of marriage, she can get maintenance without filing suit in any other act.

Order 21 rules 32 and 33 of the Code of civil procedure execute such decree in which the respondent against whom the order has been passed can follow it or willfully disobey it and the decree is to be attached with property. Such property can be sold by the petitioner if, within the period of one year, the actual restitution is not done.

Another provision related to this section is under section 13(1)(a) in which if after the order of restitution there was no actual restitution for one year or more then the petitioner can apply for divorce under the above section as it will be considered as a good ground for the order of divorce.

VI. Important Judgments

In Seema v. Rakesh Kumar[8], the Supreme court declared that if the petitioner is the wife of the respondent then she will be entitled to maintenance from the respondent if the petitioner is not able to live her life to the fullest herself.

It must be noted that section 9 of the Hindu marriage act,1955 is not gender-biased but equal for men and women. Equal measures are to be taken for the enforcement of the order of restitution.

The respondent can give a rational reason for the separation which can be anything related to grounds of annulment, termination of marriage, judicial separation, divorce, etc[9].

Restitution of Conjugal rights in marriage is a productive cure as compared to other conjugal remedies like divorce, nullity of marriage, and judicial separation. It aims at a reunion of the parties of the marriage rather than terminating it.

It is the major benefit of this law. But on the other hand, if we look at it pragmatically, the true picture of this law may differ. Human beings are psychological entities and they have emotions and if someone is not able to create mutual understanding with another, then no one can force it with any statute. As in an Indian survey conducted on such cases, it was noted that many restitution cases are filed due to some hidden agenda.

In Annapuranamma v. Appa Rao[10], the wife filed a case of divorce on the ground that the husband was suffering from leprosy and in return, the husband filed a case of restitution to delay the proceedings of the above case although the petition of restitution was completely baseless and it was only filed with the motive of torment his wife.

In Kusum Lata v. Kampta Prasad[11], the husband had completely failed to look after her wife which is the valid ground for judicial separation. The same case was filed by the wife and it was countered by the petition of restitution by her husband and court dismissed both pleas.

In Sohan Lal v. Smt. Pratibha Mehra[12], it has been observed that where restitution of conjugal rights between parties to marriage for period of one year and respondent did not honoured the decree passed under Section 9 of Hindu Marriage Act, and since there had been no restitution of conjugal rights between the parties for a period of one year. After passing of decree for restitution of conjugal rights, the husband was entitled to divorce under Section 13(1-A) of the Act.

VII. Conclusion

The article discussed the legal provision in Hindu marriage related to the restitution of conjugal rights, as marriage under Hindu law is considered to be a sacred bond and to protect such bond in case of insignificant misunderstandings is the main object of such law and to help in maintaining sound conjugal life.

But, we have also discussed how such remedy is used by the party for some hidden purpose which is not morally acceptable and the constitutionality of the restitution which is interpreted by the judiciary occasionally, it is on the husband and wife whether to accept the decree or apply for other remedies such as divorce and judicial separation.


References:

  • Journal of the Indian Law Institute, APRIL-JUNE 1970, Vol. 12, No. 2 (APRIL-JUNE 1970), pp. 257-268.
  • Restitution of Conjugal Right – A comparative study, Available Here
  • The Hindu Marriage Act, 1955

[1] AIR 1997 Bom 380

[2] AIR 1986 MP 225

[3] P. RajeshkumarBagmar v. Swathi Rajeshkumar Bagmar (2008) 4 CTC 338.

[4] AIR 1963 SC 1295

[5] AIR 1983 AP 356

[6] AIR SC 1984 1562

[7] 1990 (1) HLR 518

[8] (2000) 9 SCC 271

[9] The Hindu Marriage Act, 1955 9(2)

[10] A.I.R. 1963 Andh. Pra. 312

[11] A.I.R. 1965 All. 280

[12] A.I.R. 2007 NOC 915 Raj


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Updated On 2022-07-08T11:05:03+05:30
Aakriti Vikas

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