“ANALYSIS ON:

RESTITUTION ON CONJUGAL
RIGHTS – HINDU MARRIAGE
ACT 1955”
Submitted by:

SOWMYA V (sec 2)

ROLL. NO. - 20211BAL0045

Submitted to:

Asst.Prof – DR. Mamatha G.M

Course code: LAW 30005

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 School of law

“ANALYSIS ON:

RESTITUTION ON CONJUGAL RIGHTS –

HINDU MARRIAGE ACT 1955”

Introduction:

Numerous provisions of Indian personal law recognise the significance of conjugal rights in a
marriage. In the strictest sense, marriage rights refer to the freedom to cohabit and have a
sexual relationship with one's spouse. The wife and husband must respect each other's rights
and live together, which is one of marriage's most basic obligations. "Restitution of Conjugal
Rights" is a legal provision that enables the offended party to restore cohabitation against a
spouse who withdrew without cause. This is frequently considered a strategy to keep a
marriage intact. This article will discuss restitution of conjugal rights meaning, restitution of
conjugal rights filed by husband, restitution of conjugal rights filed by wife, Section 9 of the
Hindu Marriage Act, 1955, its constitutional validity, limitations, and international
perspective.

“We do not create marriage from scratch. Instead, in the elegant language of the marriage
ceremony, we ‘enter into the holy estate of matrimony.’

Marriage and family are two strong pillars of the Indian Society. Both these terms are
considered as highly sacrosanct. In our country Marriage is a religious institution which is
pivotal for the growth of our society and on a larger frame our country. Marriage forms

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family and thus it can also be said that family is a subset of marriage. We live in a generation
where the life is too fast and thus it results in many feuds. All these things have resulted in
the lack of harmony among married couples. Following is an interesting observation done by
Burgess and Locke.

“Family is a social group of persons united by the ties of persons united by the ties of
marriage, interacting and communicating with each other in their respective social roles”.

During the last one decade it has also been noted that the rate of Matrimonial Dispute is
continuously rising. In earlier times matrimonial disputes weren’t given much of an
importance. But with changing times, a new steam of thought has taken place where
alternative methods are adopted to solve a matrimonial dispute. Owing to these reasons it is
very necessary to study and analyse the topic.

This article is an attempt to critically analyse the concept of Restitution of Conjugal Rights, a
matrimonial remedy available for the Hindus in the Hindu Marriage Act of 1955. The author
will also analyse the cases decided by the apex court relating to the issue of conjugal rights.
The author will elucidate upon the same by discussing the object, scope and the extent of
applicability of Section 9 of the Hindu Marriage Act, 1955.

Marriage as an institution gives rise to a relationship between two partners: The Husband and
the wife, which further gives rise to more relations. This relationship also gives birth to
different sets rights and obligations. These rights and obligations cumulatively constitute’
Conjugal rights’ and can be termed as essence of the marital union. The term ‘Conjugal
Rights’ in literal sense means ‘Right to stay together.’

It is a general accepted norm that each spouse should act as a support to other in hard times,
should be there to comfort and love the partner. But if any of the partner leaves the other
without any reasonable or sufficient cause, then the aggrieved party can knock the doors of
the court to seek justice. Restitution of conjugal rights is the only matrimonial remedy
available is restitution of Conjugal Rights.

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 SECTION 9 – THE HINDU MARRIAGE ACT, 1955

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.”.

When a spouse is guilty of staying away without any reasonable or a just cause and if the suit
of restitution of conjugal rights succeeds than the couple would be required to stay together.
Thus, it can also be inferred that section 9 is the marriage saving clause or section. This
remedy was earlier applied in England and later on implemented by the privy council in
India, for the first time in a case namely Moonshee Bazloor v. Shamsoonaissa
Begum. However, this matrimonial remedy of restitution of conjugal rights has been removed
in England way back in 1970.

There are three important requisites to be fulfilled for Section 9

 Spouses must not be staying together.

 Withdrawal of a party from the other must have no reasonable ground for such
withdrawal.

 The aggrieved party must apply for restitution of conjugal rights.

Constitutional Validity of Section 9

It is to be noted that there arises a contention that restitution of Conjugal Rights clearly
violates Right to privacy of the wife. Although the Supreme Court is its judgement
of Kharak Singh vs. State of UP has held right to privacy “is an essential ingredient of
personal liberty”. In Gobind v. State of M.P. again the court had to encounter the issue raised

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in the case of Kharak Singh. In this case the honourable Supreme Court came to a conclusion
that right to privacy -among other rights is included in right to liberty.

Judicial Approach

In T. Saritha Vengata Subbiah v. State, the court had ruled that that S.9 of Hindu Marriage
Act relating to restitution of conjugal rights as unconstitutional because this decree clearly
snatches the privacy of wife by compelling her to live with her husband against her wish.
In Harvinder Kaur v. Harminder Singh, the judiciary again went back to its original
approach and help Section 9 of Hindu Marriage Act as completely valid. The ratio of this
case was upheld by the court in Saroj Rani Vs. S.K. Chadha

Restitution of Conjugal Rights Violates

 Freedom of Association – Article 19 (1) (c)

 Freedom to reside and settle in any part of India – 19(1) (e).

 Freedom to practice any profession – 19 (1) (g)

Infringement of Freedom of Association

In our country every citizens have a fundamental right to associate with anyone according to
his/her wish, By the matrimonial remedy of restitution of conjugal rights is freedom is
violated as a wife is compelled to have a association against her will, with her husband.
In Huhhram Vs Misri Bai, the court passed the restitution against the will of the wife. In this
case though the wife had clearly stated that she would not wish to live with her husband, still
the court went ahead and gave the judgement in favour of the husband. The opposite thing
happened in Atma Ram. v. Narbada Dev,  where the judgement was passed in favour of wife.

Infringement of Freedom to reside and to Practice any Profession.

We live in a society where there is complete freedom as to which profession to choose. At

times under the restitution of conjugal rights a person is forced to live with the partner with
no general wish or interest. And thus, this freedom to freely reside and practice any
profession of choice, seems to be violated. Several times in the past courts have tried to give
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a remedy. The apex court in the case of Harvinder kaur v. State it was said that
“Introduction of the Constitutional Law in the Home is most inappropriate; it is like
introducing a bill in a China shop”

What Is Restitution of Conjugal Rights?

Conjugal Rights Restitution is a legal entitlement that is based on Section 9 of the Hindu
Marriage Act. The aggrieved party may apply to the district court for restitution of conjugal
rights if the husband or wife is withdrawn from the other partner's company without valid. In
simple terms, the restitution of conjugal rights is regaining the companionship of a spouse
who has abandoned the relationship for no apparent reason.

Who Can Seek Relief?

When either the husband or wife has withdrawn from the other's society without sufficient
justification, the aggrieved party may petition the district court for restitution of conjugal
rights, the court has to examine if the petition is true and there is no legal reason why the
application should not be granted the restitution of conjugal rights.

Why Is the Relief Given?

The legislature, in its wisdom, has provided a statutory remedy for either spouse to reclaim
the company of the spouse who has left the company without good reason, with the objective
of protecting the sanctity and legality of the institution of marriage.

When & Where to File the Petition?

The district court's jurisdiction is asserted whenever a husband or wife is excluded from the
other's company without good reason. For Restitution of Conjugal Rights, the Principal Judge
of the Family Court would be invoked under Section 19 of the Hindu Marriage Act. Every
petition filed under the HMA must be filed in the Family Court of the original civil
jurisdiction where:

 The marriage was solemnized.

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  The respondent resides.

 The parties to the marriage last lived together; and

 If the wife is the petitioner, where she has been residing on the date of filing the
petition.

Procedure And Steps for Restitution Of Conjugal Rights:

Step 1: File the Petition.

Step 2: File the Reply.

Step 3: Present the Petitioner's Evidence.

Step 4: Present the Respondent's Evidence.

Step 5: Present the Arguments.

Step 6: Present the Judgment & Decree.

Constitutional Challenge Before The Hon'ble Supreme Court:

Previous challenge: In Smt.Saroj Rani vs. Sudarshan Kumar Chadha, 1984 AIR 1562, the
constitutional validity of Section 9 of the HMA was questioned before the Hon'ble Supreme
Court. The Hon'ble Supreme Court ruled that conjugal rights, i.e., a husband or wife's right to
be in the company of the other spouse, are not a legal authority in India. Divorce is a legal
right that is embedded in the institution of marriage.

The Hindu Marriage Act, Section 9, includes sufficient safeguards to prevent it from
becoming a tyranny. It also decided that Section 9 of the Act does not violate Article 14 or
Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in

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the aforesaid Act is viewed in its correct context and the mode of execution in cases of
disobedience is considered. It overturned the decision of the Andhra Pradesh High Court.

In Ojaswa Pathak and Anr. vs. Union of India, WP (C) 250/2019, a new challenge to the
constitutional validity of Section 9, HMA was filed before the Hon'ble Supreme Court. The
Hon'ble Supreme Court's judgments in Justice KS Puttaswamy vs. Union of India, 2017 10
S.C.C. 1, Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1, and Joseph Shine vs.
Union of India, (2019) 3 SCC 39, where the Hon'ble Supreme Court declared the provisions
of laws to be unconstitutional, are likely to have an impact on the outcome of this case.

How To Deal with Matters Related To Matrimonial Disputes?

Couples who are embroiled in a divorce dispute are under a lot of stress, and the litigation can
be tedious at times. Qualified matrimonial lawyers can give you the correct advice and
explain the implications of your actions and it is always advisable to consult matrimonial
lawyers since the beginning of the dispute to have a desirable outcome.

RESTITUTION OF CONJUGAL RIGHTS CASE LAWS.

 In Sareetha v. T. Venkatasubbaiah, the constitutionality of the provision for conjugal

restitution was challenged before the Andhra Pradesh High Court. In this case,
Sareetha argued that Section 9 of the Act should be declared unconstitutional because
it infringes on Articles 14 and 21 of Part III of the Indian Constitution. According to
Justice Choudary, section 9 is a brutal and barbaric remedy that violates the right to
privacy and the dignity of all people protected by Article 21 of the Constitution. It
denies women the freedom to decide whether, when, and how their bodies will be
used to carry out human evolution. It denies women the freedom to determine
whether, when, and how their bodies will be used to carry out procreation. Her ability
to manage her most personal choices is lost. Therefore, it is evident that a decree of

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 restitution of conjugal rights blatantly violates the right to privacy protected by
Article 21. Section 9 of the Hindu Marriage Act of 1955 was unconstitutional.

 Justice Rotagi acknowledged that "the law has created restitution of conjugal rights as
an additional reason for divorce" in Harvinder Kaur v. Harminder Singh.

 "The concept of recovery of marital rights is a vestige of ancient times when slavery
or quasi-slavery was seen as natural," the Hon'ble High Court stated in Shakila Banu
v. Gulam Mustafa. This is undoubtedly salient that India's Constitution has come into
effect, which grants the State the authority to enact special measures for protecting
and safeguarding women's rights and personal liberty and equality of opportunity for
men and women.

 In the end, the Supreme Court overturned the ruling in Sareetha v. T.

Venkatasubbaiah. It issued a verdict in Saroj Rani v. Sudharshan that was consistent
with the Delhi High Court's views and upheld the constitutional validity of Section 9
of the Hindu Marriage Act, 1955. Here is a judgement from the Saroj Rani case:

 The learned Judge acknowledges in para. 87 that restitution of conjugal rights is an

ancient remedy: "I cannot accept that S. 9 is unconstitutional, regardless of how
outdated or out of step the remedy may be with the times. If the parties cannot
reconcile, the restitution decree functions like a divorce decree under the Act's overall
system.

 The judge's true objective is revealed in paragraph 91, when he states, "At the end, I
will reiterate what I have already said: It is for the government to abolish the remedy
of restitution, not for the courts to declare it unconstitutional. I believe S. 9 to be
entirely valid. The judge appears to wish to abolish the remedy, but he is powerless
due to the current legal framework.

The court pointed out that the section's goal is to encourage cohabitation between estranged
people so they can coexist. Neither Article 21 nor Article 14 have any place in the privacy of
the home or marital life.

International perspective

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  United Kingdom

According to English law, the only marriage-related subject that the ecclesiastical courts had
jurisdiction over was the decree for restitution of conjugal rights. If either the husband or wife
left the other's company without justification because it was said it might be used against a
person, the parties would be compelled to remain together. It has been adhered to for quite
some time. The Matrimonial Proceedings Act of 1970 dealt directly with the Act, as
recommended in a report the law commission mission filed in Beirut in 1969.

 Canada

The majority of Canadian law that governs the restitution of conjugal rights is derived from
English law. Family law in the nation has evolved and is changing rapidly. The Decree for
Restitution of Conjugal Rights was recognised as a legal document in Canada, although only
in a few provinces. The restitution of Conjugal Rights was only recognised as a valid statute
in Canada after the twentieth century when Family Law became standardised.

 Australia

The ability of courts to issue judgments ordering the restoration of marital rights was
eliminated by the Family Law Act of 1975. According to Section 114(2) of the Family Law
Act of 1975, the court may require a party to provide for conjugal rights or matrimonial
services. However, it was last used in 1978 and is now outdated. The Australian Law
Commission agreed with this approach in 2010, stating that Section 114(2) is inconsistent
with family law principles and ought to be repealed.

Conclusion

“A Horse can be brought to the water pond but cannot be compelled to drink”.

The above-mentioned proverb is very famous, and the concept of restitution seems to be akin
to the theory of conjugal rights. When a person is separated emotionally from another, then it

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becomes really difficult to unite them. Thus, restitution of conjugal rights is such a
matrimonial remedy, which will force the person to save the marriage, but it cannot guarantee
its effectiveness. Some section of people also say that it is against the concept of natural law
theory. Restitution of conjugal rights is a remedy intended to preserve the marriage rather
than end it, unlike divorce or judicial separation, which is a significant element that must be
underlined. It helps to prevent marriage breakdown and is a way to keep a marriage together.
If the order of restitution of the conjugal right or the right to remain married is not followed
for more than one year after the order's date, it can be used as a valid reason for divorce.

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