Restitution of conjugal rights

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When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.

Explanation- Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.[1]

A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. The decree of conjugal rights cannot be executed by forcing the party who has withdrawn from the society from the other to stay with the person who institutes petition for restitution. The decree can be executed only by attachment of the judgment debtor. However the decree is not honored for a period of more than one year from the date of the decree, it becomes the ground for divorce.

Shanti Devi vs Ramesh Chandra Roukar And Ors. on 15 September, 1967 honorable high court held that the parents of a women will considered as valid witness though they are interested parties to the suite.

Shanti Devi vs Balbir Singh And Anr. on 3 February, 1971 the conduct of the husband toward the wife amounted to such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with the husband within the meaning of Section 9(2) of the Act. So the restitution of conjugal rights will not decreed.

Sukram vs Smt. Mishri Bai on 29 September, 1978

A  marriage in contravention of Section 5(iii) of the Act, can neither be declared ab initio void nor voidable. A person contravening is liable to be punished under Section 18 of the Act. Here from the pleadings and evidence of the respondent, it appears that after she became major she has been coming and living with the appellant, thereby showing that she has validated the marriage and condoned the defect, if there was any. So the contravention of rules of the act at the time of marriage will not considered as ground for not restituting the conjugal rights.

Essentials: 

1.      Withdrawal from the community. 

2.      The withdrawal shall be without rational cause, excuse or legitimate reason. 

3.      No other legal grounds for denying relief should exist.

4.      The court must be satisfied with the reality of the statement made in the petition.[2]

Constitutionality of Restitution of Conjugal Rights

The issue of the constitutional validity of Section 9 was first raised in T Sareetha v Venkatasubbiah, in which the Andhra Pradesh High Court held Section 9 of the Hindu Marriage Act to be violative of the Constitution and the impugned section was unconstitutional.[3]

Justice Chaudhary held Section 9 to be “savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution, hence void.

 In Harvinder Kaur v Harminder Singh This case in a stark contrast to the Sareetha case upheld it’s view and declared that section 9 is not unconstitutional. The Hon’ble court observed that the view stated by the learned counsel in the Sareetha case was simply based on a misunderstanding of the true and real nature of the remedy of the restitution of conjugal rights.  The court respectfully expressed its dissent towards the opinion of the Andhra Pradesh high court and observed that under section 9 the court has the right to imply a decree of restitution of conjugal rights to ensure the return of the spouse who has repulsed from the society of the husband without any reasonable and justified excuse.[4]

The matter then finally came before the Supreme Court in Saroj Rani v Sudarshan Kumar Chadha where the Supreme Court overruled T Sareeta relying on the judgment of Justice Rotagi in Harvinder Kaur. Justice Sabyasachi Mukarji observed that “it cannot be viewed in the manner the learned single Judge bench of the Andhra Pradesh High Court has viewed it and we are unable to hold that Section 9 to be violative of Article 14 and Article 21 of the Constitution. The judgment was held in favor of Section 9 of the Hindu Marriage Act of 1955, in the legal sphere as declared by the apex court and, most of all, the principle of restitution of conjugal rights stands constitutional in the Indian legal system.[5]

Conclusion :

Reconciliation between the husband and wife to save their marriage is the primary reason for the restitution of conjugal rights. The main objective of the restitution decree is to promote cohabitation amongst the estranged parties so that they can coexist together in their matrimonial home in peace and harmony. Restitution of conjugal right is provides a legal path for spouses to resume cohabitation.

Refrences:

• [1] The Hindu Marriage Act, 1955
• [2] viddhiaagaz.com
• [3] viddhiaagaz.com
• [4] lawtimesjournal.in
• [5] viddhiaagaz.com