 Family Law-I

 Topic
 Matrimonial Remedies under Hindu Law

 Date
 21/09/2021
 Matrimonial Remedies under Hindu Law :

 There are four matrimonial remedies under the modern Hindu law. These are:
 1. Restitution of Conjugal Rights (section 9),
 2. Judicial Separation (section 10),
 3. Nullity of Marriage and Divorce (section 11-18).
 Restitution of Conjugal Rights:

 After marriage the husband is entitled to the society of his wife and the wife is
entitled to the society of her husband. A cause of action, therefore, arises when
one of the parties to the marriage withdraws from the society of the other.

 Section 9 of HMA deals with the subject of the restitution of conjugal rights. The
foundation of the right is the fundamental rule of matrimonial law that one
spouse is entitled to society and comfort – consortium – of the other spouse and
where either spouse has abandoned or withdrawn from the society of other
without reasonable excuse or just cause the court should grant a decree for
restitution.
 Restitution of Conjugal Rights:

 Section 9 states that “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excuse, withdrawn from the society of the other, the aggrieved party may apply, by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”.
 Explanation: Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the
person who has withdrawn from the society.
 Section 9 of the Act is intended to provide an opportunity for re-approachment and
reconciliation between the two spouses. It would obviously be an attempt of the
court to effectuate compromise between the spouses.
 Restitution of Conjugal Rights:

 Either spouse can institute proceedings in court for directing the other spouse to
give back the conjugal society which has been unreasonably withdrawn.
 In Sushila Bai v. Prem Narayan (AIR 1976 MP 225), the MP High Court held
that in order to sustain a petition for restitution of conjugal rights, it is necessary
to establish that the respondent has withdrawn from the society of the petitioner.
The society means conjugal society.
 The essence of the decree for restitution of conjugal rights is that either of the
spouses desiring the company of the other makes an effort through the court for
its assistance in order to restore the other back to him so that they may be able to
lead conjugal life.
 What amounts to withdrawal?

 Married persons are bound to live together and if either of them withdraws the
society of other without lawful excuse, the Court may compel the parties to
return to cohabitation (Weldon v. Weldon, 1883).
 The forsaking of wife’s bed, avoiding her society and seclusion of himself from
her in a separate part of common residence may amount to withdrawal from
cohabitation (Powell v. Powell).
 The expression “withdrawal from the society of the other” involves a mental
process besides physical separation. The act of temporarily leaving matrimonial
hoe would not amount to withdrawal from the society of the other, when there is
no intention to withdraw permanently (Ramesh Chandra v. Prem Latha, AIR
1979 MP 15).
 Working Women and Restitution of Conjugal Rights:
 In Halsbury’s Laws of England, it is stated, “It is a husband’s duty to provide his wife
with a home according to his circumstances. There is no absolute rule whereby either
party is entitled to dictate to the other where the matrimonial home shall be; the
matter is to be settled by agreement between the parties, by a process of parties of
give and take and by reasonable accommodation”.
 In N.R. Radhakrishna v. N. Dhanalaxmi (AIR 1957), the Madras HC has held that the
right of the husband to require his wife to live with him is not unqualified where the
wife is gainfully employed in a place away from husband’s home, the court held it to
be a reasonable excuse to live apart and the restitution petition of the husband was
not granted.
 In another case adjudged by P&H Court, Smt. Surjit Kaur v. Ujjal Singh (1978), the
decree for restitution of conjugal rights has been granted to the husband even though
the wife was gainfully employed away from the matrimonial home. The Court said
that the husband had the right to determine the locus of the matrimonial home and
that he had means to support wife.
 Restitution of Conjugal Rights:
 The Delhi High Court (Smt. Sushil Kumari v. Prem kumar, 1976), once stated that
where a petition for restitution of conjugal rights has been filed by the husband and
the husband also accuses the wife of adulterous conduct, the court held that these two
claims cannot stand side by side and hence, rejected the petition.
 The following grounds have been held to be valid considerations for living separately:
 Grossly indecent behaviour;
 Extravagance of living on the part of wife effecting the financial position of husband;
 Persistence in a false charge against the respondent of having committed an unnatural
offence;
 Refusal of marital intercourse without sufficient reason;
 Apprehension of violence due to development of insanity of petitioner;
 Misconduct approaching cruelty;
 Imputation of unchastity persisted in by the husband.
 Constitutionality of Restitution of Conjugal Rights:
 In T. Sareetha v. Venkata Subbaiah (AIR 1983 AP 356), the AP High Court has
observed that the remedy of restitution of conjugal rights provided under section 9
of the At is a savage and barbarous remedy violating the right to privacy and human
dignity guaranteed by Article 21 of the Constitution. According to the learned judge,
it denied the woman a free choice, where, when and how her body was to become
the vehicle for procreation of another human being. A decree of restitution of
conjugal rights deprived a woman of control over her choice as and when and by
whom the various parts of her body should be sensed. It is arbitrary and void as
offending Article 14 of the Constitution.
 But the above AP HC view was not accepted by Delhi High Court in Smt.
Harvinder Kaur v. Harmander Singh (AIR 1984), the court has expressed the view
that section 9 as of violative of Articles 14 and 21 of the Constitution. The object of
the decree was to bring about the cohabitation between the estranged parties so that
they could live together in the matrimonial home in amity. The remedy aimed at
cohabitation and consortium, it does not force sexual intercourse.
 Constitutionality of Restitution of Conjugal Rights:
 The law has now settled by the Supreme Court in the case of Saroj Rani v.
Sudarshan Kumar (AIR 1984), where by it was observed that Section 9 cannot be
said to be violative of Article 14 or Article 21 of the Constitution if the purpose
of the decree is understood in its proper perspective. In India conjugal rights are
not merely the rights created by the statute, these rights are inherent in the very
institution of marriage itself.