restitution of conjugal rights

RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU LAW – by Thejaswini

RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU LAW

 

-The author is Sivapuram V.L Thejaswini, a 3rd year Student of BBA.LL.B (Hons.) from Alliance University, Bangalore.

 

What does the Restitution of Conjugal Rights mean?

 

  • Restitution means the restoration of something that is lost.
  • Conjugal Rights are the rights that arise out of the marriage between the husband & wife.

Thus, Restitution of Conjugal Rights means if either party to a marriage withdraws from the society of the other party, then the aggrieved party has a right to file a petition claiming relief if there is no legal ground for it.

 

What is the legal definition of Restitution of Conjugal Rights?

 

  • ‘Section 9’of the Hindu Marriage Act (HMA), 1955, deals with the concept of ‘Restitution of Conjugal Rights.’
  • When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.

 

What are the essentials to obtain decree under ‘Section 9’?

 

  • The other spouse of the marriage has withdrawn from the society of petitioner
  • There should be no reasonable excuse for such withdrawal.
  • The burden of proof lies on the respondent who alleges reasonable excuse.
  • The court should be satisfied regarding the truth of statements made in the petition.
  • There should be no availability of legal grounds to refuse the decree.

 

Merely for legal marriages :

 

  • After the solemnization of marriage, if either of the spouses without any reasonable excuse withdraws themselves from others’ society, only then an aggrieved party has a right to file a petition under ‘Section 9’.

 

In ‘Ranjana Kejriwal v. Vinod Kumar Kejriwal’,

  • The petitioner, i.e., wife, alleged that the husband was already married & had suppressed the fact from her.
  • It was held that the petition under ‘Section 9’is not maintainable because it is not a legal marriage.

 

Landmark Judgements :

 

In ‘T. Sareetha v. T. Venkatasubbaiah’,

The issue before the Andhra Pradesh High Court was regarding the constitutional validity of the provision of ‘Restitution of Conjugal Rights’.

  • Sareetha claimed that ‘Section 9’of HMA, 1955, has to be struck down as it is violative of ‘Articles 14 & 21’ of the Constitution.
  • This section denies the free choice of a woman as she loses control over most of her intimate decisions.
  • It was held that this ‘Section 9’of HMA 1955 was unconstitutional.

 

In ‘Harvinder Kaur v. Harmander Singh’,

It was recognized by ‘Justice Rotagi’ that the legislature has created this provision of Restitution of conjugal rights as an additional ground for divorce.

 

In ‘Shakila Banu v. Gulam Mustafa’,

It was observed that ‘Restitution of Conjugal Rights’ is a relic of very ancient times where there used to be slavery.

 

In ‘Saroj Rani v. Sudarshan’,

  • It was stated that ‘Restitution of conjugal rights’ though archaic/outdated, but it is a preparation for divorce when the parties don’t come together.
  • It is also not in the hands of the courts to strike down this section as unconstitutional.
  • It is in the hands of the legislature to abolish the remedy.

 

What was the recommendation given?

 

The Law Commission of India recommended the deletion of this ‘Section 9’ from the Hindu Marriage Act of 1955 in its ‘Consultation Paper on Reform of Family Law’ in ‘August, 2018’.

 

Conclusion :

 

Some critiques may be against this section. Because sometimes, a person may be forced to stay with their life partner by force. So it might cause injustice to the other party.

In ‘Huhhram v. Misri Bai’,

  • In this case, the court ordered restitution against the will of the wife.
  • Though she has clearly stated that she would not wish to live with her husband.

 

Hence, we can see that this matrimonial remedy sometimes may be against the wish of some parties.

 

 

Disclaimer – The views expressed and information given in this article are solely of the author and do not represent in any way the views of or impose any liability on The Philomath, its employees or any other person or entity. We endeavor to maintain a quality check of the published articles but are in no way guaranteeing the accuracy of any information. Any legal opinion shared herein should not be used as an alternative to professional legal advice.

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