Analysis of Restitution of Conjugal Rights

- Sagar Sharma

ABSTRACT
The Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act of 1955 has
consistently been a point of debate in the law. There were detractors of the Hindu Marriage Act,
1955's effectiveness even as it was being passed by the Parliament. Restitution of conjugal
rights is a constructive remedy that calls for cohabitation between the married couple. However,
this cure has been abused. As a result, it appears that there are questions over whether this is
even a solution. As a result, the researcher separated the investigation into two halves. The
Restitution of Conjugal Rights provision in Section 9 of the Hindu Marriage Act of 1955 and the
Indian Constitution of 1950 are discussed in the first section of the paper. The researcher has
focused on the "Views of the Indian Courts on the aspect of Right to Privacy associated with the
Restitution of Conjugal Rights" in this section. In addition, the paper's second section discusses a
critical analysis of Section 9 of the 1955 Hindu Marriage Act.

INTRODUCTION
A partner who is being abandoned by the other partner may use the restitution of conjugal rights
as leverage. A court may issue an order compelling the guilty spouse to live with the victim
spouse. It is a procedure that is used in both religious tribunals and courts for divorce and
matrimonial cases. The Christian courts have historically held authority over this marriage
matter.
Each party is given certain legal rights under it. In accordance with the restitution of conjugal
rights clause, if either the husband or the wife ever refused to perform the obligations that were
unjustifiably required of him or her and for which he or she was not given notice, the aggrieved
party may apply to the proper district court for legal help. As a result, it is occasionally
recognised as a marital remedy.

1
 I. What is Restitution of Conjugal Rights?

when, in accordance with Section 9 of the Hindu Law Marriage Act of 1955, either the husband
or the wife abruptly withdraws from the other's social group. The victim of injustice may submit
a petition to the district court seeking for the restoration of their marital rights. If the petition's
arguments are judged to be persuasive and there is no credible defence, the court may pronounce
restoration of conjugal rights.
II. What Are Conjugal Rights in India?
The Hindu Law Marriage Act of 1955's Section 9 states that it is forbidden for either the husband
or the wife to unjustifiably exclude the other from their respective social circles. The victim of
the injustice may request that the court reinstate their marriage-related rights. A conjugal right is
the legal right to continue being married. The ability of a husband and wife to have sex without
restriction is seen as having married rights.

III. Conjugal Rights of Husband

Conjugal rights, also referred to as the husband or wife's right to the company of the other
spouse, are privileges that accompany marriage. These rights are protected by laws governing
marriage, mutual divorce, and other family-related issues as well as by criminal statutes
mandating alimony and maintenance payments to a spouse. You can seek legal assistance and
ask for your rights to be restored if your wife violates your marital obligations. Numerous
personal laws expressly ban the exercise of marital rights.

IV. Benefits From RCR For Husband

RCR has a number of advantages, depending on the particulars of each situation. RCR has often
been boiled down to a tactic for getting the other party to consent to a divorce. You can even ask
to have her property attached if RCR is in your favour but your wife won't come with you.
After a year, you might be able to apply for divorce if your spouse wins the RCR and is no
longer considered a part of you. You will have the quickest access to this benefit. A negative
decision against her won't stop or invalidate her legally-filed divorce petition.

V. How Can the Court Deny a Restitution of Conjugal Rights (RCR) Order?

2
A husband may also ask for his wife's conjugal rights to be restored if the wife flees or if the
husband disregards their contractual obligations without justification. The following are some
reasons why the court can decide against issuing a ruling restoring conjugal rights: harshness of
the husband or in-laws. regarding the husband's disregard for his marriage-related obligations.
because the spouse didn't pay a quic.

VI. Requirements of Restitution of Conjugal Rights

The respondent has left the petitioner's neighbourhood.
The withdrawal has no reasonable defence, rationale, or legal support.
There shouldn't be any more legal grounds for refusing the relief.
The validity of the observation made in the petition should be disclosed to the court.

VII. Documents Required for Restitution of Conjugal Rights

Proof of address
Identification proof for the petitioner
Image of the petitioner as proof of marriage
whatever confirms the court's jurisdiction.

VIII. Procedure to Be Followed for Restitution of Conjugal Rights

The district court receives the restitution suit petition from the injured spouse. The petitioner
goes on to designate HC as the case application's addressee.
On the dates indicated, both parties must show up in court.
After that, the court would schedule counselling appointments for both parties.
Typically, these courts meet three times in a span of four months, with breaks of 20 days in
between.

IX. Petition for Restitution of Conjugal Rights Filed by Husband and Wife
The petition for the restoration of conjugal rights may be submitted by either party—a husband
or a wife.
What Grounds May the Court Find in Ordering the Restitution of Conjugal Rights?

3
The following justifications are enough for the court to issue an order for the restitution of
conjugal rights (RCR):
If the petitioner can convince the judge that the respondent (spouse) withdrew from society
without giving a valid explanation, the petition will be granted.
The petitioner's (the unhappy spouse's) complaints in the petition are true, and the court found no
legal justifications why the aggrieved spouse shouldn't be granted the restoration of conjugal
rights.

X. Circumstances Where the Court Cannot Pass the Rule of Restitution of Conjugal
Rights
Any grounds the respondent may have used to obtain a court order separating the parties, a
divorce, or a ruling that the marriage is invalid and void; any actions or circumstances on the part
of the petitioner that could suggest that the petitioner is abusing his or her rights or any inability
to obtain such relief; any other reasonable explanation for the petitioner's social isolation.

XI. Marital Obligation

Section 9 of the Hindu Marriage Act of 1955 states that a consent decree restoring conjugal
rights may be issued and would not be void. If it is not contested by an appeal or another legal
procedure, it becomes final. Such a directive cannot be disregarded, but if it is, Section 13 (1A)
of the Hindu Law Marriage Act of 1955 permits its use as a basis for divorce.

XII. Restitution of Conjugal Rights Notice

Under section 9 of the Hindu Marriage Act, a spouse who abandons the other without a good
reason is issued a legal notice requesting their return.According to section 9 of the law, the
victim of abuse may ask the court to restore their conjugal rights if they haven't received official
notice of the marital issues.

XIII. What Is Judicial Separation?

Any spouse may ask the court for a separation order on any of the grounds specified in the
divorce requirements. A valid method of maintaining distance from your spouse without
requiring a divorce decree is to separate legally.

4
It also helps to sign a petition calling for the restoration of marital rights. The testimony of a
spouse who has been legally ordered to live apart by a court cannot be used against that spouse in
a legal process.
If the parties to the marriage have not resumed cohabitation (the act of living together) for a
period of one year or longer after the entry of the judicial separation judgement, it shall be
grounds for divorce.

XIV. What Are the Limitations of Restitution of Conjugal Rights?

The offended spouse must wait a year even if they disagree with the ruling to restore their
conjugal rights. Alternatively, the petition for divorce cannot be filed concurrently with the
petition for the restoration of marital rights. Since they are said to be mutually destructive of one
another, these prayers must be offered after the one before is ineffective.

XV. Judicial Approach of Conjugal Rights Restitution Article 9

The court found that S.9 of the Hindu Marriage Registration Act, which deals with the
restoration of conjugal rights, is unconstitutional since it forces the wife to live with her husband
against her will, in T. Saritha Vengata Subbiah v. State[11]. Without a doubt, the wife's privacy
has been violated. In the case of Harvinder Kaur v. Harminder Singh, the court took a different
tack and declared Section 9 of the Hindu Marriage Act to be entirely legal[12]. The ratio of the
case was upheld by the court in Saroj Rani v. S.K. Chadha[13].

XVI. Restitution of Conjugal Rights Violated

Article 19 (1) (c): Associational Freedom
Anywhere in India is free to live and work - 19(1) (e).
Any profession may be freely practised – 19(1)(g)

XVII. Infringement of Freedom of Association

In our nation, everyone is free to associate with whomever they choose. Restitution of conjugal
rights, a matrimonial remedy, violates a wife's freedom because it forces her to associate with her
husband against her will. In Huhhram Vs. Misri Bai[14], the court ordered restitution
notwithstanding the wife's wishes. Despite the fact that the woman in this case had made it

5
apparent that she did not want to live with her husband, the court rendered a decision in his
favour. Contrarily, the ruling in the case of Atma Ram v. Narbada Dev[15] favoured the wife's
side.

XVIII. Advice for Improvement

Restitution of conjugal rights is a contentious and challenging topic. Contrary to some's notion
that it is done to preserve the marriage, some claim that forcing the aggrieved party to stay with
the other party serves no purpose because they are not at all interested. Nevertheless, there's
always room for improvement.
Instead of rigid marital rights, the idea of reconciliation could be taken into consideration.
Restitution is a painful and challenging concept since it calls for compromises on both sides. A
very delicate call for reconciliation is made in contrast. Restitution is difficult since forcing both
parties to coexist in opposition to their will is likely to cause conflict will. In the event that
reconciliation is chosen, it may not enrage either party and will also clear up any ambiguities.

XIX. Availability of Restitution of Conjugal Rights

The restitutional remedy is accessible in India:
Muslims should abide by ordinary laws.
To Hindus under Section 9 of the Hindu Marriage Act of 1955 and Section 36 of the Parsi
Marriage and Divorce Act of 1936
For those who were wed under the Special Marriage Act of 1954, in accordance with Section 22
of that law, and to Christians in accordance with Sections 32 and 33 of the Indian Divorce Act of
1869.

XX. Restitution of Conjugal Rights: Key Components

The main components of Section 9 of the Hindu Marriage Act of 1955 (restitution of conjugal
rights) are as follows:
It is necessary for the parties to be legally married.
One ought to stay out of someone else's social circle.
Without a good reason, this withdrawal must be done.

6
The court will want proof to support the claim that the decree cannot be rejected for legal
reasons.
XXI. Rights to Make Maintenance Claims
The wife is free to request supervision under Section 25 of the Hindu Marriage Act, which
addresses judicial separation notes. If the husband does not fulfil this obligation, the court will
seize his assets.

XXII. CASES RELATED TO RESTITUTION OF CONJUGAL RIGHTS

1. T. Sareetha v. Venkata Subbaiah (1983)1

The Andhra Pradesh High Court decided the case and stated that Section 9 of the aforementioned
Act was an extreme and barbaric remedy that violated the right to privacy, human dignity, and
equality protected by Articles 14 and 21 of the Constitution.

As a result, it was decided that Section 9 violated the rights that were protected by Part III of the
Constitution and was therefore unconstitutional. The learned Judge asserts that an order for the
restoration of her conjugal rights deprives her of the right to decide how, when, and by whom
different areas of her body may be sensed. The Scarman Commission Report in England, which
advocated its repeal, was cited by the court.

2. Saroj Rani v. Sudarshan Kumar2

The Apex Court resolved the aforementioned discrepancies over Sec. 9's constitutionality in this
instance. Three main problems were highlighted by the case:

1. When the wife filed a petition for the restitution of conjugal rights, the husband was
determined to be entitled to divorce. Since a spouse is not prohibited by Section 23(a) from
requesting relief under Section 13(1A), the decree was granted.

2. It was determined that the remedy of restitution of conjugal rights provided by Section 9 of the
Act is constitutional and does not contravene Articles 14 and 21 of the Constitution.

3. The amount of maintenance was decided upon separately for the wife and the daughter.
1
1 B.M. GANDHI,Hindu Law 296 (EBC Publishing {p} Ltd.,Lalbagh Luckhnow) Fourth Edition, 2016.
2
https://www.scconline.com, Saroj Rani v. Sudarshan Kumar AIR 1562 1985 SCR (1) 303 1984 SCC (4)
90 1984

7
3. Vuyyuru Pothuraju v. Radha 19653
The pre-nuptial agreement in the present case stated that the husband and wife would reside
together at the home of the wife's foster father after their marriage. As a result of being
mistreated there, the husband later returned to his village and requested his wife to visit him.
When she refused, he started a lawsuit for the restoration of their conjugal rights. The Court held
that the pre-nuptial agreement was unenforceable and subsequently allowed the petition.

4. Mirchumal v. Devi Bai4

The impact of a husband and wife serving in various locations is the case's main focus. In this
instance, the wife worked in Adipur and the husband was stationed close to Ajmer. The petition
for restitution of conjugal rights was filed by the husband after the wife refused to leave her
work.
According to the court's ruling, the wife's simple refusal to quit her employment is sufficient
cause for the husband to request recovery of conjugal rights if there is no refusal on her side to
grant access to her husband or any reluctance on her part to visit her husband.As a result, the
petition was denied.

Burden of Proof
When one spouse in a marriage withdraws from conjugal society without reasonable cause, the
other spouse has the right to request the restoration of their conjugal rights.It is the responsibility
of the person who withdrew from conjugal society to provide a good reason. This justification
must make sense and be believable.
The husband's elderly parents living with him or the wife having to manage her late father's
estate are not acceptable defences. A wife would, however, be justified in divorcing her husband
if she were made to eat meat or drink alcohol against her will.

3
https://www.scconline.com, Vuyyuru Pothuraju v. Radha 1965 : AIR 1965 AP 407
4
https://www.scconline.com, Mirchumal v. Devi Bai AIR 1977 Raj 113

8
 CONCLUSION

Conclusion: Section 9 of the Hindu Marriage Act of 1955 allows for the restoration of conjugal
rights, but before enacting this remedy, it is crucial to consider the specifics of each case as well
as any potential violations of personal freedom.

Finally, a significant provision of the Hindu Marriage Act, 1955 is Section 24, which offers
assistance to partners who might need financial support while matrimonial proceedings are
ongoing. The clause guarantees that the court has the power to order the respondent to pay the
applicant maintenance, ensuring that the applicant receives support payments throughout the
legal process.

Regardless of whether the general public benefits from this therapy, it's critical to comprehend its
potential. Indian tradition mandates that partners should make a conscious effort to live together
and sustain their relationship. This factor affords these communities a strong legal foundation,
but on the other side, it lets two people who would rather not live together to thrive because a
union made under duress cannot persist.

BY- SAGAR SHARMA

SECTION-B (LSL)