RESTITUTION OF CONJUGAL RIGHTS

The restitution of conjugal rights under sec 9 of the Hindu Marriage Act will restore the marital
union if any one of the partners has withdrawn from the society of the other without any
reasonable excuse. In this regard, the burden of giving an acceptable excuse will rest on the
person withdrawing from the society.

Conjugal right means the right to stay together by virtue of entering into a marital bond with the
life partner.

As per Section 9 of Hindu Marriage Act 1955, the affected person can approach the court for
restitution of conjugal rights if either the husband or wife withdraws from the society without
reasonable excuses.

The term conjugal rights can be placed against any of the married partners in the event of the
said partner staying away from the party without a proper reason. In the event of the suit
succeeding, the couple will have to stay together.

Essential criteria for the fulfillment of section 9 are:

a) The spouses must not be found staying together.

b) The party who has withdrawn from the union must have done so on unacceptable
grounds.
c) The aggrieved party must have applied for restituting the conjugal rights.

Petition for the restitution of conjugal rights be declined on the following grounds:

a) The respondent is capable of demanding matrimonial relief.

b) The petitioner admits to having resorted to any matrimonial misconduct.
c) The petitioner’s behavior makes it tough for the respondent to stay with him or her.

The aggrieved person needs to file a petition in the district court. If the court is satisfied with the
contentions made by the petitioner and is convinced that there are no grounds on which the
petition should be declined, it will act in the favor of the aggrieved party and decree restitution.
The Andhra Pradesh High Court in T Sareetha v T Venkatasubbaiah (1983), states that social
reality meant that the remedy of restitution of conjugal rights was largely used as an “engine of
oppression to be operated by the husband for the benefit of the husband against the wife”. As
recognised in Sareetha, the remedy of restitution of conjugal rights in effect disadvantages
women. It has in the past, been used by Courts to deny women the right to take up employment
of their choice in places away from their marital homes. It is consistently used by husbands to
avoid claims of maintenance filed by the wife. Considering this remedy as a form of indirect
discrimination against women, the Court struck down Section 9 of the Hindu Marriage Act as
unconstitutional.

The idea that a Court could legally require an unwilling spouse to live in the same house as
his/her partner — seems absurd, as it amounts to a violation of the fundamental rights of
privacy, freedom of movement, dignity and equality guaranteed under the Indian Constitution.
However, the provision has been upheld by the Supreme Court in Saroj Rani v. Sudarshan
Kumar Chadha (1984) as constitutionally valid on the grounds that it performs an important
social purpose of preserving a marriage.
 JUDICIAL SEPERATION

Section 10 in The Hindu Marriage Act, 1955:

Section 10 Judicial separation:

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act,
may present a petition praying for a decree for judicial separation on any of the grounds specified
in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in
sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the
petitioner to cohabit with the respondent, but the court may, on the application by petition of
either party and on being satisfied of the truth of the statements made in such petition, rescind the
decree if it considers it just and reasonable to do so.

A judicial separation is a legal process by which a married couple is formally separated, despite
being legally married.

The separation is granted in the form of a court order.

Section 10 of Hindu Marriage Act provides for judicial separation. It provides that either party to
a marriage can file a petition before the Court for such a relief on any of the following grounds:

(i) that the other party has had voluntary sexual intercourse with any person other than his or her
spouse after solemnization of marriage;

(ii) that the other party has, after solemnization of the marriage, treated the spouse with cruelty;

(iii) that the other party has deserted the spouse for a continuous period of not less than 2 years
immediately preceding the presentation of the petition;

(iv) that the other party has ceased to be a Hindu by conversion to another religion;

(v) that the other party has been incurably of unsound mind, or has been suffering continuously
or intermittently from mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the other party;
(vi) that the other party has been suffering from a virulent and incurable form of leprosy;

(vii) that the other party has been suffering from venereal disease in a communicable form; or

(viii) the other party has renounced the world by entering any religious order; or

(ix) the other party has not been heard of as being alive for a period of seven years or more by
those persons who would naturally have heard of him/her, had the party been alive;

In case of wife, she is entitled to the aforesaid relief of judicial separation on following
additional grounds also:

(a) that the husband has, since the solemnization of marriage, been guilty of rape, sodomy or
bestiality;

(b) that a decree or order has been passed against the husband awarding maintenance to the wife
under section 18 of Hindu Adoptions and Maintenance Act, 1956 or in proceeding under section
125 Cr.P.C and since the passing of the decree or order, cohabitation between the parties has not
been resumed for one year or upwards;

(c) that her marriage was solemnized before she attained the age of 15 years and she has
repudiated the marriage after attaining that age but before attaining the age of 18 years.

Alternate Relief in Divorce Proceedings

Even though either party to the marriage seeks decree of divorce, the Court may pass a decree for
judicial separation and not a decree of divorce, if the Court considers it just so to do having
regard to circumstances of the case.

No Alternative Relief

It may be mentioned that when decree of divorce is sought on the grounds mentioned in clauses
(ii), (vi) and (vii) of sub-section (1) of section 13 instead of decree of divorce, decree for judicial
separation cannot be passed. Clause (ii) provides for decree of divorce when other party has
ceased to be a Hindu by conversion to another religion.
Clause (vi) provides for decree of divorce when other party has renounced the world by entering
'any religious order. Clause (vii) provides for decree of divorce on the ground that the other party
has not been heard of as being alive for a period of 7 years or more by those persons who would
naturally have heard of him/her, had the party been alive.

Effect of Separation

Where a decree for judicial separation has been passed in your favour, it shall no longer be
obligatory for you to cohabit with your spouse.

Separation isn’t the same as divorce, but it does have a similar effect with respect to inheritance
or new contracts. Any property acquired subsequent to the separation can be disposed off by the
spouse as if she/he were unmarried; similarly, if the spouse dies intestate, the property would be
distributed among his/her heirs exactly as if the husband/wife were already deceased.

Where Court considers it just and reasonable and is satisfied on the application of either party
i.e., either husband or wife, Court may rescind decree of judicial separation.

THESE NOTES ARE ONLY FOR REFERENCE. IT IS SUGGESTED TO GO

THROUGH THE CLASS NOTES AND BOOKS ALSO.