INTRODUCTION

Marriage as an institution gives rise to a relationship between two partners: The Husband and the
wife, which further gives rise to more relations. This relationship also gives birth to different sets
rights and obligations. These rights and obligations cumulatively constitute’ Conjugal rights’ and
can be termed as essence of the marital union. The term ‘Conjugal Rights’ in literal sense means
‘Right to stay together.

It is a general accepted norm that each spouse should act as a support to other in hard times, should
be there to comfort and love the partner. But if any of the partner leaves the other without any
reasonable or sufficient cause, then the aggrieved party can knock the doors of the court to seek
justice. Restitution of conjugal rights is the only matrimonial remedy available is restitution of
Conjugal Rights.

Marriage is one of the most important social institutions today. It forms the very basis of social
organization. Hindu shastras and law regard marriage as a sacrament which is eternal. It is
considered to be a contract by some as well. Marriage, whether considered to a contract or a
sacrament, confers the status of husband and wife on the parties to marriage, of legitimacy on the
children born out of the marriage and gives rise to certain spousal mutual rights and obligation of
spouses. This sacramental character of marriage has given rise to certain anomalies. The
declaration of Manu that “neither by sale nor by desertion is wife released from the husband”
was hitherto applied only to women and not men. Thus there was an element of inherent injustice
on the wife in Hindu law. After marriage the husband is entitled to the society of his wife and
vice versa. A need for legal action arises when one of the parties to the marriage withdraws from
the society of the other. To counter such inequalities among spouses and to protect the
sacramental aspect of marriage, Hindu Marriage Act, 1955 was enacted which provided certain
matrimonial remedies. One such remedy is that of ‘Restitution of Conjugal Rights’ which is
found under section 9 of the Hindu Marriage Act, 1955. The foundation of the right is the
fundamental rule of matrimonial law that one spouse is entitled to society and comfort-
consortium- of the other spouse and where either spouse has abandoned or withdrawn from the
society of the other without reasonable excuse.
 HISTORICAL BACKGROUND
Like many anachronistic remedies, the restitution of conjugal rights dates back to the feudal era
in England, where marriage was considered a property deal, and wife was part of man’s
possessions like other chattels. A man’s wife was treated no more than a cow. If it ran away from
its master’s shed then it could be roped back. It is quite unfortunate that many anachronistic
common law actions were abolished in other spheres, but they survived in case of matrimonial
law and from there, they were introduced in the laws and practices of the British colonies as
well. Restitution of conjugal rights is a remedy which was made available to members of all
communities at a very early period of the British rule in India. The remedy was unknown to
Hindu law till the British introduced it in the name of social reforms. After independence this
remedy found place in the Hindu Marriage Act, 1955. In modern India, the remedy is available
to Muslims under general law, to Hindus under section 9 of the Hindu Marriage Act,1955, to
Christians under section 32 of Divorce act, to Parsis under section 36 of the Parsi Marriage and
Divorce Act and to persons marrying in the civil form under section 22, Special Marriage Act.

Section 9 – The Hindu Marriage Act, 1955

Restitution of Conjugal Rights-

(1) 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 and the court, on being satisfied of the truth of the statements made in such petition and that
there is no legal ground why the application should not be granted, may decree restitution of conjugal
rights accordingly.

(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall
not be a ground for judicial separation or for nullity of marriage or for divorce.
When a spouse is guilty of staying away without any reasonable or a just cause and if the suit of
restitution of conjugal rights succeed than the couple would be required to stay together. Thus it
can also be inferred that section 9 is the marriage saving clause or section. This remedy was earlier
applied in England and later on implemented by the privy council in India, for the first time in a
case namely Moonshee Bazloor v. Shamsoonaissa Begum. However, this matrimonial remedy of
restitution of conjugal rights has been removed in England way back in 1970

There are three important requisites to be fulfilled for Section 9

 Spouses must not be staying together.

 Withdrawal of a party from the other must have no reasonable ground for such
withdrawal.
 The aggrieved party must apply for restitution of conjugal rights

Constitutional Validity of Section 9

It is to be noted that there arises a contention that restitution of Conjugal Rights clearly violates
Right to privacy of the wife. Although the Supreme Court is its judgement of Kharak Singh vs.
State of UP has held right to privacy “is an essential ingredient of personal liberty”. In Gobind v.
State of M.P. again the court had to encounter the issue raised in the case of Kharak Singh. In this
case the honourable Supreme Court came to a conclusion that right to privacy -among other rights
is included in right to liberty.

In T. Sareetha vs Venkata Subbaiah the Andhra Pradesh High Court has observed that the
remedy of restitution of conjugal rights is a violation of right to privacy and human dignity
guaranteed by article 21 of the Constitution. According to the judgement, a woman is denied a free
choice regarding her own body and whether it was to become a machine for procreation of another
human being. A decree of restitution of conjugal rights deprived a woman of her control to make
her most intimate decisions. It was arbitrary and void as offending article 14 of the Constitution
as well.
However in Smt. Harvinder Kaur vs Harmander Singh, the Delhi High Court observed that
Section 9 of the Hindu Marriage Act is not violative of articles 14 and 21 of the Constitution.

The Supreme Court has now settled the law with regard to the constitutionality of section 9 of
the Act. In Saroj Rani vs Sudarshan Kumar the Supreme Court observed that section 9 of this
act cannot be said as violative of articles 14 and 21 of the Constitution if the purpose of the
decree of restitution of conjugal rights is understood in its proper perspective and if the method
of its execution in cases of disobedience is kept in view.

INSINCERITY OF THE PETITIONER IN

RESTITUTION CASES

The most fundamental problem with the remedy is the insincerity of the petitioner. The remedy is
blatantly misused to achieve ulterior purposes other than reconciliation. The root cause of this
problem lies in Section 13 (1A)(ii) of Hindu Marriage Act, 1955. This section says that if a
restitution decree has not been complied with for a period of one year the parties can file for
divorce. The general trend in restitution claims is that the “aggrieved party” files a restitution
petition, then does not willingly comply with the decree and after the statutory period of one year,
files for divorce under S. 13 (1A)(ii) on the ground of non-compliance with the decree. There is a
string of cases to this point. In fact, Justice Rotagi in Harvinder Kaur v Harminder
Singh recognised that “the legislature has created restitution of conjugal rights as an additional
ground for divorce”.

Yet another major problem with restitution petitions is that it is used as a defence for maintenance
suits. In England where until 1949, a married woman’s claim to maintenance could be sustained
only if she has already applied for some other matrimonial relief. Almost every restitution petition
made by the wife was to prepare the ground for claim of maintenance. This was aptly proved by
the fact that when the law was changed and maintenance could be claimed without any previous
claim to some other relief, the number of wives’ restitution petitions fell by more than sixty-three
percent within a couple of years. The situation is no different in India.
WORKING WOMEN AND RESTITUTION OF
CONJUGAL RIGHTS

It has been held in various cases that a wife is not obligated to live with her husband under one
roof if she is gainfully employed in a place away from her husband’s residence. The Court holds
it to be a reasonable excuse to live apart in such a case and the husband’s restitution petition is not
granted.

In Alka Bhasker vs Satchidananda Barke[4] the Bombay High Court further held that the
matrimonial home is not necessarily the house of the husband or the house of his parents. In this
case both the husband and wife were gainfully employed at different places and decide to book
ownership of a flat at Bombay. The husband contributed initial amount and the wife paid the
remaining balance. It was held that this flat at Bombay was the matrimonial home of the parties.

CRUELTY AS A GROUND FOR WITHDRAWAL OF

SOCIETY

The Court is not barred from considering cruelty as a valid reason for withdrawal of society.
Cruelty shown by husband’s parents over various grounds including dowry as well, emotional and
physical torture by the spouse, verbal abuse and even raising questions over wife’s chastity are
categorised under cruelty and are valid reasons for withdrawal of society.

In Smt. Sumanbai vs Anandrao Onkar Panpatil the court held that there can be no more
insulting injury to the wife than her own husband questioning her chastity. If such allegations are
lightly made and persisted in filing the petition, the husband is not entitled to any relief under
section 9 of the act.

The burden of proof under Section 9 of the HMA

The burden of proof is on the aggrieved/petitioner who needs to prove that the respondent has
withdrawn from his society. Once that burden is discharged by the petitioner, it falls on the
respondent to prove that there exists a reasonable excuse for the withdrawal.
Reasonable grounds on which petition for Restitution of
Conjugal Rights can be rejected:
First, if the respondent has a ground on which he or she can claim any matrimonial relief;

Second, if the petitioner is guilty of any matrimonial misconduct;

Third, if the petitioner is guilty of such act, omission or conduct which makes it impossible for
the respondent to live with him; for instance, husband’s neglect of his wife or the constant
demand for dowry, etc. are some reasonable ground for the wife not to join the company of her
husband.

Judicial Approach
In T. Saritha Vengata Subbiah v. State, the court had ruled that that S.9 of Hindu Marriage Act
relating to restitution of conjugal rights as unconstitutional because this decree clearly snatches the
privacy of wife by compelling her to live with her husband against her wish. In Harvinder Kaur
v. Harminder Singh, the judiciary again went back to its original approach and help Section 9 of
Hindu Marriage Act as completely valid. The ratio of this case was upheld by the court in Saroj
Rani Vs. S.K. Chadha

Restitution of Conjugal Rights Violates

 Freedom of Association – Article 19 (1) (c)

 Freedom to reside and settle in any part of India – 19(1) (e).
 Freedom to practice any profession – 19 (1) (g)
Infringement of Freedom of Association

In our country every citizens have a fundamental right to associate with anyone according to
his/her wish, By the matrimonial remedy of restitution of conjugal rights is freedom is violated as
a wife is compelled to have a association against her will, with her husband. In Huhhram Vs Misri
Bai, the court passed the restitution against the will of the wife. In this case though the wife had
clearly stated that she would not wish to live with her husband, still the court went ahead and gave
the judgement in favour of the husband. The opposite thing happened in Atma Ram. v. Narbada
Dev, where the judgement was passed in favour of wife.

Infringement of Freedom to reside and to Practice any Profession

We live in a society where there is complete freedom as to which profession to choose. At times
under the restitution of conjugal rights a person is forced to live with the partner with no general
wish or interest. And thus, this freedom to freely reside and practice any profession of choice,
seems to be violated. Several times in the past courts have tried to give a remedy. The apex court
in the case of Harvinder kaur v. State it was said that, “Introduction of the Constitutional Law in
the Home is most inappropriate, it is like introducing a bill in a China shop”

Suggestions for Improvement

Restitution of Conjugal Rights is a highly debatable and a controversial subject. Some people feel
it is to preserve the marriage while some say that there is no meaning in forcing the other party to
stay with the aggrieved party as they are not at all interested. However, there is always a scope of
improvement by tweaking something.

The concept of Reconciliation may be tried in place of the rigid conjugal rights.[17] The idea of
restitution is very harsh and barbaric, as it forces either of party to compromise. While on the other
hand the tone of reconciliation is very mild and requesting. The problem with restitution is that
there are high chances that the situation may turn up ugly after both the parties are forced to live
together unwillingly. But if the remedy is reconciliation than it may not be offensive to either of
the parties and will also clear the air of misunderstanding.
To implement this the judiciary should not be intervened as the function of the Court is to settle
disputes not reconciliation. What can be done is a separate committee should be formed and the
sole function of this specially formed committee will be to administer and solve the matrimonial
disputes. The idea of reconciliation is also very effective as it is fast, effective and practical.

CONCLUSION
“A Horse can be brought to the water pond but cannot be compelled to drink”

The above-mentioned proverb is very famous and the concept of restitution seems to be akin to
the theory of conjugal rights. When a person is separated emotionally from another, then it
becomes really difficult to unite them. Thus, restitution of conjugal rights is such a matrimonial
remedy, which will force the person to save the marriage but it cannot guarantee its effectiveness.
Some section of people also say that it is against the concept of natural law theory.

Even though the concept of restitution of conjugal rights has been much criticized, it still has not
been replaced. Many jurists are of the opinion that reconciliation is a better method for
addressing matrimonial disputes than restitution. However, restitution of conjugal rights still
prevails under section 9 of the Hindu Marriage Act,1955 in the present day.