Marriage is considered to be the purest bond between two individuals. It gives them the recognition to be accepted in the society where they come together and live sharing each other’s assets and livelihood they would have earned. Marriage also leads to imposition of rights and duties towards each other which parties are compelled to follow.
Unlike most of the countries, in India, marriage is considered to be the most sacred bond not only between two individuals but also their families. Society accepts the relationship between two individuals only if they are bound in the sacred relations.
However, there comes a time when some of the marriages would not result as what it was thought to be. There would be differences in the opinion or clashes among the thoughts which sometimes can get so entrenched that it would result in judicial separation and divorces.
There will be situations where one party wants to end the matrimonial relation but the other party wants to be committed and cohabit. Such parties are provided with the remedy of Restitution of Conjugal Rights .
HINDU MARRIAGE ACT, 1955
The Hindu Marriage Act, 1955 deals with marriage, divorce, maintenance and judicial custody of children among Hindus. Section 9 of Hindu Marriage Act provides for the Restitution of Conjugal Rights. As per the provision, when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.
REQUISITES OF SECTION 9
The following are the essentials for the application of Section 9:
- Husband and wife should be legally married.
- Husband and wife must not be living together.
- The ground for withdrawing from other’s society must be unreasonable.
- The party must have filed for the restitution of conjugal rights.
The above mention has been observed in various cases, including Sushila Bai v. Prem Narayan  wherein the husband left his wife to her parents home and asked to come back when called for, over which the wife had filed a case under Section 9 and the court had granted the decree after observing that there existed no reasonable cause for withdrawal from his society. Another case citing the question of reasonable excuse is Jagdish Lal v. Smt. Shyama Madan  in which husband had filed the case under Section 9 but the case was dismissed as the wife had proven that he was impotent, which provided a reasonable excuse to withdraw the spouse from her society.
Further, in Ranjana Vinodkumar Kejriwal v. Shri Vinod Kumar Kejriwal , the wife filed for restitution of conjugal rights against the husband, who was already married to another woman. The judgment was passed against the wife as the marriage of the petitioner and the respondent was not legal marriage.
GROUNDS FOR REFUSAL OF GRANT OF RESTITUTION OF CONJUGAL RIGHTS
The grounds on which a court may refuse the grant of conjugal rights includes:
- Cruelty by husband or in-laws.
- On failure of performance of marital obligations by husband.
- Non payment of the dower by the husband.
BURDEN OF PROOF
The party which has been deprived of being in a society of the other can apply for restitution of conjugal rights and the burden of proof will lie upon the aggrieved party to prove that the grounds for desertion is unreasonable in nature and then the onus shifts upon the respondent to prove that the ground was reasonable in nature.This has been supported in the case of P. Rajesh Kumar Bagmar v. Swathi Rajeshkumar Bagmar.
Under Section 25(1) of the Hindu Marriage Act, the courts have been empowered to order the respondent to provide for maintenance, upon an application made by the petitioner.
This provision is endorsed in the case of Seema v. Rakesh Kumar  in which the Supreme Court held that the petitioner, the wife, was entitled to maintenance from her husband when she was not able to have a decent life on her own.
Section 13(1A)(ii) of the Act provides that in the case when after a decree for restitution of conjugal rights has been granted and thereafter, for more than one year, the decree has not been applied by the parties involved, the parties are entitled to apply for divorce.
Section 9 of the Hindu marriage Act gives remedy to the aggrieved party so as to restore the rights and obligations that had arisen out of their marriage. However, there come instances when the section instead of providing remedy has led to infringement of some fundamental rights. There have been cases in which the constitutionality of the section is described as violation of fundamental rights by various High Courts and the Supreme Court judges.
CONSITUTIONAL VALIDITY OF SECTION 9
The very first instance of challenging constitutional validity of Section 9 came through a case of Andhra Pradesh High Court named T. Sareetha v. T. Venkata Subbaiyah . Husband had filed the petition under Section 9. The judgment against Section 9 was passed by J. Chowdhary quoting -“it promotes no legitimate public purpose based on any conception of the general good.” and after citing several cases, Section 9 was declared null and void as it is in violation of Articles 14 and 21.
The above judgment discoursed from the Delhi High Court’s judgment in the case of Harvinder Kaur v. Harmender Singh Chowdhary, as per which: “Under section 9, the court has power to make a decree of restitution of conjugal rights which is the remedy available to enforce the return of a spouse who has withdrawn from cohabitation. The leading idea of section 9, to my mind, is to preserve the marriage.”
The Supreme Court, in Saroj Rani vs Sudarshan Kumar Chadha , dealt with the issue and approved the Delhi High Court’s decision in Harvinder Kaur vs. Harmender Singh Chowdhary. The judgment was given in favor of Section 9 as it came with safeguards which prevents it from being tyranny; while also endorsing the fact that this section does not violate Articles 14 or 21 of the Constitution, if the said provision is to be understood from the right perspective.
SECTION 9 AND ARTICLE 21
Article 21 of the Constitution guarantees protection of life and personal liberty. But the imposition of restitution of conjugal rights forces one of the parties against their will to live with another depriving the person of privacy and personal liberty. In Kharak Singh v. State of Uttar Pradesh , it was duly noted that Article 21 implies the right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.” But these had been ignored in the judgments given by the High court and the Supreme court.
ARTICLE 19 (1)(c)
The Constitution has given the fundamental right to have freedom of association according to his or her wish but this right gets infringed by the restitution of conjugal rights because this remedy prevents the person to get associated with another person and to live with the person who has filed for such remedy.
Infringement of such a right can be seen in the case of Sukram v. Smt. Mishri Bai in which husband had appealed for section 9. But the wife complained that her father-in-law had an evil eye upon her and his husband used to beat her. Therefore she withdrew herself from his husband’s society. The court had dismissed all the allegations charged by the wife and passed the judgment in favor of husband.
ARTICLE 19 (1)(e) AND (g)
Right to choose any profession, employment and trade, as guaranteed by our Constitution, also gets violated because the party against whom the restitution of conjugal rights is imposed ,is compelled to live with other party and in some cases the person has to leave his or her profession in order to follow the decree. Since the person is compelled to live with the other, it also infringes the right to settle in any part of the country.
Tirath Kaur v. Kirpal Singh , it was held “where the wife refuses to resign her job which compels her to live away from her husband and join him, it cannot be said that she has not deserted him or has not withdrawn from his society without a reasonable cause and that the application of the husband for restitution of conjugal rights cannot be dismissed merely because she has expressed a desire that the marriage should continue and also consented to visit the husband and to allow him to visit her occasionally.
Similarly, in the case of Shanti Nigam v. Ramesh Chandra Nigam, the wife resisted the decree applied by the husband citing that he did not have sufficient income nor did he possess any property and also coerce her to leave her services. The judgment went against the wife and the decree was allowed in favor of the husband.
At this point, it comes to the conclusion that restitution of conjugal rights is still required in the Indian legal environment because it acts as a last chance to restore the marriage. But certain loopholes sometimes defeat the very purpose for which it has been enacted. Most of the time there remained no emotional attachment between the couple, the decree merely became the responsibility towards each other.
Another drawback for application of section 9 is that it must be shifted to arbitration as it would lessen the burden of courts. In addition to it, there would be speedy disposal of such matters as well as it will build confidence among the parties because not all of them wanted to have disclosure of family matters in courts.
AIR 1986 MP 225.
AIR 1966 All 150.
AIR 1997 Bom 300.
Restitution of Conjugal Rights :A comparative study Among Indian Personal Laws, available at: https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/ (last visited on September 10,2020).
 AIR 2008 Mad 36.
 AIR 2000 (9) SCC 271.
 AIR 1983 AP 356.
 AIR 1984 Delhi 66.
 AIR 1984 SC 1562.
 AIR 1963 SC 1295.
 AIR 1979 MP 144.
 AIR 1964 Punj 28.
 AIR 1971 ALL 567.
BY VARNIKA SINGH CHAUHAN | BHARTI VIDYAPEETH NEW LAW COLLEGE,PUNE