Restitution of Conjugal Rights Under Section 9 of the Hindu Marriage Act
Restitution of Conjugal Rights Under Section 9 of the Hindu Marriage Act

Hinduism regards marriage as a sacrament. It considers marriage as a union of two souls. Marriage under Hindu law confers certain marital obligations and provides certain rights to parties in the matrimonial relationship.

The Supreme Court in Smt. Saroj Rani vs Sudarshan Kumar Chadha (AIR 1984) noted that “The essence of marriage is the sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to face in life.”

Marriage presumes that the husband and wife will live together. Both spouses have the right to get comfort from the other, and if either party fails to fulfil its obligations, he or she may be compelled to do so.

Bare Act PDFs

Meaning of Restitution of Conjugal Rights

The restitution of conjugal rights means the re-establishment of the marital relationship between husband and wife because the prime objective of marriage is that parties will consummate it and enjoy the society and comfort of each other.

The idea of providing the restitution decree by a court is to preserve the marriage union as far as possible by enabling the courts to intervene between the parties.

Availability of Restitution of Conjugal Rights

In India, the remedy of restitution is available:

  • to Hindus under section 9 of the Hindu Marriage Act, 1955.
  • to Muslims under the general law.
  • to Christians under sections 32 and 33 of the Indian Divorce Act, 1869.
  • to Parsi under section 36 of the Parsi Marriage and Divorce Act, 1936.
  • And under section 22 of the Special Marriage Act, 1954 for persons married under the Special Marriage Act.

Section 9 of the Hindu Marriage Act, 1955

Section 9 of the Hindu Marriage Act, 1955 talks about the restitution of conjugal rights. It states that:

  1. When either the husband or the wife,
  2. Without any reasonable excuse, withdraws from the society of others,
  3. Then the aggrieved party may apply by petition to the district court for restitution of conjugal rights,
  4. And if the court satisfies with the truth of the statement made in the petition and found that there is no legal ground to reject the petition,
  5. Then, the court may issue a decree of restitution of conjugal right accordingly.

Essential Elements of Restitution of Conjugal Rights

The essential elements of section 9 of the Hindu Marriage Act, 1955 (restitution of conjugal rights) are as follows:

  1. There must be a valid marriage that exists between the parties.
  2. One should withdraw from the society of another.
  3. This withdrawal must be made without any reasonable excuse.
  4. The court must satisfy the truth of the statement that no legal ground exists for refusing the decree.

Who May Apply for a Decree of Restitution?

It is to be noted that any of the spouses can file the petition for restitution under section 9 of the Hindu Marriage Act.

The Apple of discord in section 9 is the word “withdraw from society” and “reasonable excuse.” The terms are nowhere defined, but through several pronouncements, the judiciary states what will be included under these terms.

Now, let us see some judgements that highlight the terms “withdraw from society” and “reasonable excuse.”

Section 9 of Hindu Marriage Act Case Laws

In Sushila Bai vs Prem Narayan Rai (AIR 1985), the court pointed out that if the husband left his wife in her father’s home and did not maintain any connection with her, then it will be considered as withdrawing from the society of his wife and thus decree for restitution was allowed.

In TirathKaur vs Kirpal Singh (AIR 1996), the question before the Punjab and Haryana High Court was ‘whether wife’s employment can be considered a ‘reasonable excuse’ to leave husband’s society and stay away from him. The court applied the traditional approach and held that the wife’s employment is not a reasonable excuse. The court further said that “the wife’s first duty is to submit herself to her husband and remain under his roof and protection.”

Again, in Gaya vs Bhagwati (AIR 1965), the Madhya Pradesh High Court held that under Hindu society, the wife should perform matrimonial responsibility or obligation under the husband’s house, and she cannot take any unilateral decision.

In Shanti Devi vs Ramesh Chandra (AIR 1969), the Allahabad High Court took a progressive approach. It held that during the hardship of employment, if the wife withdraws from her husband’s company, then this withdrawal is considered a valid withdrawal and comes under the clout of reasonable excuse. Thus no decree for restitution was allowed.

What Is a Reasonable Excuse Under Section 9 of HMA?

Generally, the term reasonable excuse includes:

  1. The ground on which the party can get matrimonial relief.
  2. If the party is guilty of any matrimonial misconduct, but that misconduct does not form any ground for divorce under section 13 of the Hindu Marriage Act. Still, that misconduct is grave and weighty; this may also be considered a reasonable excuse.
  3. If the party is guilty of any conjugal act or omission or misconduct that makes the situation not fit for the other party to live with each other.

Constitutional Validity of Section 9 of the Hindu Marriage Act, 1955

T Sareetha vs T VenkataSubbaiah (AIR 1983)

In the Andhra Pradesh High Court, it was argued that section 9 of the Hindu Marriage Act was against the individual’s fundamental right to liberty and dignity guaranteed by Article 21. The Andhra Pradesh High Court held that section 9 was unconstitutional and void because it was against personal liberty.

The court said that “if the wife is compelled to live with her husband, this will also violate her right to privacy.” Further, the court also highlighted that “the remedy of restitution offends the inviolability of the body and mind and invades the marital privacy and domestic intimacies of such person.”

Saroj Rani vs Sudarshan Kumar Chandra (AIR 1984 SC)

In Saroj Rani vs Sudarshan Kumar Chandra, the Supreme Court finally resolved the tussle between section 9 and fundamental rights. The Supreme Court upheld the view put forth by the Delhi High Court in Harvinder Kaur vs Harvinder Singh (AIR 1984 Delhi HC) and held that “the object of the degree was only to offer an inducement for the spouse to live together, and it does not force an unwilling wife to engage in sexual relationships with the husband.”

The remedy of restitution only aims to protect the institution of marriage, and it does not violate the principles enshrined under Articles 14, 19, and 21 of the Indian Constitution. The court further said that the remedy of restitution did not enforce sexual intercourse between the spouse, but it only brings consortium between them.

Consortium in law means “the right of association and companionship with one’s husband or wife.”

Recent Case on Conjugal Rights

In March 2019, the Indian Supreme Court admitted a writ petition in Ojaswa Pathak vs Union of India, challenging the constitutionality of the restitution of conjugal rights present under multiple family laws, including section 9 of the Hindu Marriage Act, 1955.

The objection was raised on the ground that:

  1. This provision goes against a woman’s autonomy because it obliges her to return to her husband even if she does not want to go there.
  2. The legislation also went against the private interest of sexual autonomy for men and women.
  3. It forces the reluctant spouse to engage in unwanted sexual intercourse, thus violating Article 14 and Article 21 of the Indian Constitution.
  4. It imposes an unequal burden on women and is thus contrary to Article 14 and Article 15(1) of the Constitution.

The matter is still pending before the three judges bench of the Supreme Court.

Read Next: What Is the Procedure of Registration of Hindu Marriages in India?

ABOUT OUR AUTHOR
Author Ritesh WritingLaw
Ritesh Kumar is pursuing LL.B (3rd year) from Banaras Hindu University. He is enthusiastic and passionate about his career. Ritesh loves to write on legal issues, particularly family law, criminal law, contract and arbitration.
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18 Comments

  1. In this era of equality, to use words like wife must submit to the husband smacks of patriarchy and an antediluvian mindset.
    It would also seriously impinge on the concept of equality and could therefore be unconstitutional.

  2. First time I read any article written by a student of BHU and now i get to know why it is known as सर्वविद्या की राजधानी. Very clearly written. Keep it up.

  3. Very compiled and accurate note. hope this society may understand this, and there might be some positive changes for women which help in improving their condition.

  4. It is very important for every Indian to know about such things .
    Thank you so much for sharing these informations.

  5. I read many articles on this topic but this one is the best. Going to use it in my sem exam. Thanx writinglaw.

  6. Even a L.L.B passed out. I haven’t been into this topic. But writing style of the author was very engaging that i read it completely. Will be eagerly waiting for his next topic

  7. Very informative

  8. Easily understandable. Writer uses an easy way of writing for people to understand this topic- THE HINDU MARRIAGE ACT.

  9. I am not a law student but I think the author’s language attracts me. Great job, well written.

  10. Excellent piece of writting with such a simplistic approach. Informative as well. Commendable work.

  11. Well done brother ! Delighted to see these kind of stuff by you. Very helpful😍. Keep it up

  12. Thanks for sharing such information about the Hindu Marriage Act. This note will help lots of people who don’t have knowledge.

  13. Very informative topic u have brought to the table. 👏
    People of our country need to know some of the legal rights regarding marriages.
    Especially women of our country are being exploited by their own family members in the name of the marriage which is always hidden from society.
    In this institution, which is called “marriage”, people whether a man or women not only need to respect each other’s feelings but also their souls.
    I really appreciate your hard work.
    Wish u a great future ahead.

    1. Thank you very much for sharing your thoughts. And thank you for your kind words regarding this post. Happy you liked it.

  14. Very informative

  15. Very effective writing and blending of pros and cons of Act. It will help students of law and legal practitioners.

Comments are closed.