When the husband or wife has withdrawn, without reasonable excuse, from the other’s society, the party that is aggrieved, may request, by way of petition filed to the District Court, for grant of restitution of conjugal rights. The Court, when satisfied of the truthfulness of the statements made in such a petition and making certain that there is no legal reason why the request should not be granted, may order the restitution of marital rights accordingly.
The onus of proving reasonable excuse shall be on the person who has withdrawn from the society, when there is a doubt as to an existence of reasonable excuse.
The Decree for Restitution of Conjugal Rights will be issued under Order XXI Rule 32 Civil Procedure Code, 1908.
Conditions for Decree of Restitution of Conjugal Rights
- Withdrawal of other spouse from the petitioner’s society: – Withdrawing from society in other ways without any reason, to end an existing relationship with the intention of abandoning the other, and to abandon that relationship permanently or indefinitely. Even if the husband and wife live apart but maintain a regular social and conjugal relationship (relationship linked to marriage), this would not constitute a withdrawal from the society of other.
- No reasonable excuse for such withdrawal: – The wife works and does not quit her job to live with the husband as a reasonable excuse as long as she maintains a regular and frequent social and conjugal relationship. If the respondent makes a reasonable excuse, the burden of proof is on him/her.
- Court’s satisfaction as to the truth of the statements made in petition.
- No legal justification exist for the refusal of decree.
T Sareetha vs T Venkatta Subbaiah, 1983
In this case, the Andhra Pradesh High Court held that Section 9 of Hindu Marriage Act, 1955 violates the Article 14, 19 & 21 of Constitution and called it uncivilized and barbarous. The reasoning was that sexual cohabitation is integral part of the decree of Restitution of Conjugal Rights. So, the decree basically makes the choice for the other person not only to live with their spouse but also have sexual intercourse with him. The decree is taking away the person’s independence over its own body and it is conceivable more degrading to human dignity and horrible to human spirit than subjecting a person by lengthy rope of law to positive act of sex. It is violative of Article 14 because though it treats a man and a woman equally but the husband and wife are not on the same footing in society so it is not justice to treat them equally.
Harvinder Kaur vs Harmander Singh, 1984
In this case, Delhi High Court took a very different approach on Section 9 of Hindu Marriage Act, 1955 and not only upheld the validity of it but also discussed its advantages. Court said introducing Constitutional Law in Family Law is like introducing a bull in a China shop. The Restitution is not only sexual intercourse but it is for cohabitation and there is nothing barbarous or coercive about it. The court said that a disproportionate emphasis on sex almost bordering on obsession has coloured the views of the learned Judge. The Court cited Section 23(2) and 23(3) Hindu Marriage Act, 1955 which provides measures to reconcile the couple before giving a decree of divorce. Court called Section 9 Hindu Marriage Act, 1955 as the litmus test for divorce, if the restitution decree is disobeyed, it is a ground for divorce. So, Section 9 provides two purposes, first is the attempt of reconciliation and the second as a measure of divorce because the law gives the parties a ground for divorce under Section 13(1-A) if they don’t resume cohabitation for one year after the decree of restitution is passed by the Court.
Saroj Rani vs Sudershan Kumar, 1984
In this case, Supreme Court agreed with Harvinder Kaur vs Harmander Singh. Court discussed that the financial sanction by way of attachment of properties which has been provided for disobedience of the decree (under Order XXI Rule 32 of Civil Procedure Code), is only an opportunity given to the parties so that they can settle their differences amicably. Court said that the right of the husband or the wife to the society of the other spouse is not merely a creature of the statute. Such a right is basic necessity in the very institution of marriage itself. There are sufficient preventive measures in Section 9 Hindu Marriage Act, 1955 to prevent it from being a tyranny.