RESTITUTION OF CONJUGAL RIGHTS

Table of Contents

• Meaning of Restitution of Conjugal Rights
• Section 9 of the Hindu Marriage Act, 1955
• Constitutional Validity
• Essentials of Section 9
  • Petition by Husband or Wife
  • Withdrawal Without Reasonable Excuse
• Key Case Laws

Meaning of Restitution of Conjugal Rights

The second remedy which the spouse has is the restitution of conjugal rights.

• ‘Restitution’ means the act of restoring to the rightful owner something that has been taken away.
• ‘Conjugal’ means pertaining to marriage or to husband and wife in their relation to each other.

Together, it refers to the restoration of the rights which husband and wife have to each other’s company and marital intercourse.

Section 9 of the Hindu Marriage Act, 1955

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights…”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 with the truth of the statements and finds no legal impediment, it may pass a decree for restitution.
• The burden of proving a reasonable excuse lies on the person who has withdrawn.

Outcome:

• If the decree is complied with, the marriage may be saved.
• If the order is not followed for one year, the aggrieved party may seek divorce.

Constitutional Validity of Restitution of Conjugal Rights

• Sareetha vs Venkattasubbiah (AIR 1983 AP 356): In this case Andhra Pradesh High Court held that Section 9 of the Hindu Marriage Act is constitutionally invalid as it violates Article 21 and 14 of the Indian Constitution.
• Harvinder Kaur vs Harminder Singh (AIR 1984 Del 66): In this case Delhi High Court held that Section 9 is constitutionally valid.
• Saroj Rani vs Sudarshan Kumar Chaddha (AIR 1984 SC 1562): In this case Supreme Court held that Section 9 is not violative of Article 21 and is valid.

So, the current status of this section is constitutionally valid.

Essentials of Section 9

1. Petition by Husband or Wife – It provides that the petition for restitution for conjugal rights should be presented by either husband or wife, so it is a gender-neutral provision. Valid marriage is a prerequisite for application of this section.

Case: Sharmila vs Chhote Lal [1993 (2) DMC 517 (MP)] – In this case it was held that the burden of proving marriage lies on the party bringing the suit.

Case: Swatantra Arora vs Rajendra Kumar Bali [AIR 2019 (NOC) 261 (Del)] – In this case it was held that US divorce decree was not admissible in Indian courts.

2. Withdrawal Without Reasonable Excuse – The second essential under Section 9 of the Hindu Marriage Act is withdrawal without any reasonable excuse. Withdrawal must be from society, not just from physical space. If there is no reasonable excuse by the parties, court may grant decree.

Reasonable excuse is not clearly defined; varies case to case and depends on facts.

Important Case Laws