ABSTRACT

Section 9 of the Hindu Marriage Act, 1955- the Restitution of Conjugal Rights has always
remained a bone of contention in the said enactment. Even as the Hindu Marriage Act, 1955
was being enacted in the Parliament, there were voices of scepticism regarding the efficacy
of the remedy. The remedy of restitution of conjugal rights is a positive remedy that requires
both parties to the marriage to live together and cohabit. But, this remedy has been
misused. Therefore, apparent doubts have been raised if this is a remedy at all?
The Researcher has accordingly divided the research into two parts. The first part of the
paper discusses the provision of Restitution of Conjugal Rights provided for in Section 9,
Hindu Marriage Act, 1955 conjointly with the Constitution of India, 1950. The Researcher, in
this part, has highlighted the “Views of the Indian Courts on the aspect of Right to Privacy
associated with the Restitution of Conjugal Rights”. Moreover, the second part of the paper
discusses the Critical Analysis of Section 9 of the Hindu Marriage Act, 1955

INTRODUCTION

Restitution of conjugal rights might be used as leverage by a partner who is being abandoned
by the other partner. The guilty spouse may be ordered by a court order to cohabitate with the
victim spouse. It is a process that is applied to divorce and marital cases in both religious
tribunals and courts. It's a marital issue that the Christian courts have traditionally had
jurisdiction over.

Under it, each party is granted particular legal rights. The restitution of conjugal rights
provision states that if either the husband or the wife ever failed or refused to fulfil the duties
that were expected of him or her without explanation, the aggrieved party may seek legal
assistance from the appropriate district court. It is occasionally acknowledged as a marital
cure as a result.

I. What is Restitution of Conjugal Rights?

when, in line with the Hindu Law Marriage Act of 1955's section 9 restoration of conjugal
rights, 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 asking for the restoration of their
marital rights. If the petition's assertions are found to be persuasive and there is no viable
defence, the court may declare restoration of conjugal rights.
II. What Are Conjugal Rights in India?

A conjugal right is the legal right to continue being married. the ability of a husband and wife
to have sex without restriction. This is seen as having married rights. 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.

III. Conjugal Rights of Husband

Conjugal rights, often known as the right of the husband or wife to the companionship of the
other spouse, are rights that come with marriage. Laws controlling marriage, mutual divorce,
and other family-related matters as well as criminal laws requiring the payment of alimony
and maintenance to a spouse respect these rights. If your wife abuses your marital rights, you
can seek legal help and ask for your rights to be restored. The exercise of marital rights is
specifically forbidden by a number of personal laws.

IV. Benefits From RCR For Husband

Depending on the specifics of each instance, RCR has a variety of benefits. RCR has
frequently been reduced to a strategy for winning the other party's agreement to a divorce. If
RCR is in your favour but your wife refuses to join you, you can also request that her
property be attached.

If your partner wins the RCR and no longer counts as a part of you, you might be eligible to
file for divorce after a year. This advantage will become available to you the quickest. Her
lawful divorce petition won't be halted or rendered invalid by a negative ruling against her.

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

If the husband flees her or fails to honour their contractual obligations without excuse, the
wife may request the restoration of her marital rights. A husband may also ask for his wife's
conjugal rights to be restored. The following are some reasons why the court can decide
against issuing a ruling restoring marital 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 quick dower.

VI. Requirements of Restitution of Conjugal Rights

Leaving the neighbourhood of the petitioner by the respondent

There is no legitimate justification, defence, or legal basis for the withdrawal

There shouldn't be any other legal justification for denying the relief

The court should be informed of the accuracy of the observation provided in the petition.

VII. Documents Required for Restitution of Conjugal Rights

Address proof

Evidence of the petitioner's identity

Evidence of matrimony

An image of the petitioner

Anything that verifies the court's jurisdiction.

VIII. Procedure to Be Followed for Restitution of Conjugal Rights

The damaged spouse files the restitution suit petition with the district court. The petitioner
afterwards names HC as the recipient of the case application.

Both parties must appear before the court on the days specified.

The court would then set up counselling sessions for both parties.

These courts normally convene three times over the course of four months, with pauses of 20
days in between.

IX. Petition for Restitution of Conjugal Rights Filed by Husband and Wife

Either party—a husband or a wife—may file the petition for the restitution of conjugal rights.

What Justifications Can the Court Use to Issue a Restitution of Conjugal Rights Order?

The following are the grounds that are sufficient for the court to grant the restitution of
conjugal rights (RCR) order:
The petition will be granted if the petitioner can persuade the judge that the respondent
(spouse) withdrew from society without presenting a legitimate reason.

The court found no legal reasons why the aggrieved spouse shouldn't be given the restoration
of conjugal rights because the petitioner's (the unhappy spouse's) allegations in the petition
are genuine.

X. Circumstances Where the Court Cannot Pass the Rule of Restitution of Conjugal

Rights

The court may refuse to reinstate marital rights for the following legal reasons:

Any grounds the respondent may have used to get a court separation order, a divorce, or a
declaration that the marriage is invalid and void

any actions taken by the petitioner or events that might suggest that the petitioner is abusing
his or her rights or any inability to secure such relief; any other reasonable explanation for the
petitioner's social isolation.

XI. Marital Obligation

A consent decree for the restoration of conjugal rights may be given and it won't be null and
void, according to Section 9 of the Hindu Marriage Act of 1955. If it is not challenged by an
appeal or another legal means, at which time it becomes conclusive. Such a command cannot
be ignored, but if it is, the Hindu Law Marriage Act of 1955 allows for its use as a ground for
divorce under Section 13 (1A).

XII. Restitution of Conjugal Rights Notice

A spouse who deserts the other without a valid cause is given a legal notice under section 9 of
the Hindu Marriage Act asking them to return.If the person who was mistreated hasn't
received formal notification of the marital problems, they may request recovery of conjugal
rights from the court under section 9 of the statute.

XIII. What Is Judicial Separation?

Any spouse may file a petition requesting for a judicial separation order using any of the
grounds outlined in the requirements for divorce. A legal separation is a valid strategy for
keeping your distance from your spouse while avoiding the need for a divorce order.
Supporting a petition for the reinstatement of marital privileges also helps. A spouse who has
been ordered to live apart lawfully by a court cannot be used as evidence against that spouse
in a judicial proceeding.

After the entry of the judicial separation decision, if the parties to the marriage have not
resumed cohabitation (the act of living together) for a period of one year or longer, it shall be
grounds for divorce.

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

Even if the aggrieved spouse disagrees with the decision of restitution of conjugal rights, they
must wait for a year. Alternately, the divorce petition cannot be submitted alongside the
petition for the reinstatement of marital rights. These prayers must be performed after the
preceding one is unsuccessful since they are believed to be mutually destructive of one
another.

XV. Judicial Approach of Conjugal Rights Restitution Article 9

In T. Saritha Vengata Subbiah v. State[11], the court determined that S.9 of the Hindu
Marriage Registration Act, which addresses the restoration of conjugal rights, is
unconstitutional since it compels the wife to reside with her husband against her will. There is
no doubt that the wife's privacy has been abused. The judiciary reversed direction and
affirmed Section 9 of the Hindu Marriage Act as being wholly lawful in Harvinder Kaur v.
Harminder Singh[12]. In Saroj Rani v. S.K. Chadha[13], the court maintained the case's ratio.

XVI. Restitution of Conjugal Rights Violated

Associational Freedom - Article 19 (1) (c)

Freedom to live and work wherever in India – 19(1) (e).

Any profession may be practised freely - 19 (1) (g)

XVII. Infringement of Freedom of Association

Every person of our country is free to associate with whoever they want. The matrimonial
remedy of restitution of conjugal rights infringes on a wife's freedom since she is compelled
to associate with her husband against her desire. In Huhhram Vs. Misri Bai[14], reparation
was mandated by the court against the wife's preferences. The court ruled in favour of the
husband despite the fact that the wife in this case had made it clear that she did not want to
live with her husband. The wife's side was favoured in the ruling in the case of Atma Ram v.
Narbada Dev[15], in contrast.

XVIII. Advice for Improvement

Restitution of conjugal rights is a delicately contested and difficult issue. Others contend that
forcing the aggrieved party to remain with the other party serves no purpose because they are
not at all interested, contrary to the belief of some that it is done to preserve the marriage. But
there's always space for tinkering to make things better.

The concept of reconciliation could be taken into consideration instead of strict marital rights.
Restitution is a painful and difficult idea since it necessitates mutual concessions from both
sides. On the other hand, a very delicate request for reconciliation is made. Restitution is a
challenge since it is likely to spark controversy if both sides are made to coexist against their
will. If reconciliation is decided upon, it may not anger either party and will also put any
misunderstandings to rest.

XIX. Availability of Restitution of Conjugal Rights

In India, the restitutional remedy is available:

Muslims in accordance with general legislation

To Hindus below Section 36 of the Parsi Marriage and Divorce Act of 1936 Section 9 of the
Hindu Marriage Act of 1955

For persons married in accordance with the Special Marriage Act of 1954, under Section 22
of the same statute, and to Christians under Sections 32 and 33 of the Indian Divorce Act of
1869.

XX. Restitution of Conjugal Rights: Key Components

The following are the main elements of Section 9 (restitution of conjugal rights) of the Hindu
Marriage Act of 1955:

Legal marriage between the parties is required.

One ought to stay out of someone else's social circle.

Without a good reason, this withdrawal must be done.

The court will want proof to support the claim that the decree cannot be rejected for legal
reasons.

XXI. Rights to Make Maintenance Claims

Under Section 25 of the Hindu Marriage Act, which deals with the judicial separation notes,
the wife is free to ask for supervision. The husband's assets will be seized by the court if he
fails to fulfil this obligation.

XXII. CASES RELATED TO RESTITUTION OF CONJUGAL RIGHTS

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

The case was decided by the Andhra Pradesh High Court which observed that Section 9 of
the said Act was a savage and barbarous remedy violating the right to privacy and human
dignity and equality guaranteed by Article 14 & 21 of the Constitution.

Hence, Sec 9 was declared to be constitutionally void for abridging rights guaranteed under
Part III of the Constitution. According to the learned Judge, a decree for restitution of
conjugal rights deprived of her choice as and when and by whom the various parts of her
body should be allowed to be sensed. The court relied on the Scarman Commission’s Report
in England that recommended its abolition.

2. Saroj Rani v. Sudarshan Kumar2

The above contradictions about the constitutional validity of Sec 9 were set at rest by the
Apex Court in this case. The case primarily raised 3 issues:

1. Determination of husband entitlement to divorce when petition of restitution of conjugal

rights was filed by wife. – since a spouse is not barred by Sec 23(a) from claiming relief
under Sec 13(1A), the decree was passed.

2. Constitutionality of remedy of restitution of conjugal rights provided under Sec 9 of the

Act. – it was held that Sec 9 is not violative of Article 14 and 21 of Constitution

3. Determination of maintenance – Separate maintenance was ordered 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
3. Vuyyuru Pothuraju v. Radha 19653

In the instant case, there was a pre- nuptial agreement between the husband and wife that
after marriage, the husband would live with wife at her foster- father’s house. Subsequently
he was ill-treated there and returned to his village and requested his wife to come over to him.
On her refusal, he initiated a suit of restitution of conjugal rights. The Court held that pre-
nuptial agreement was unenforceable and subsequently allowed the petition.

As a general principle, any agreement, be it under Hindu law or Muslim law, between
husband wife to live separately, is considered to be void for being contrary to public policy.

3. Mirchumal v. Devi Bai4

This case primarily deals with the effect of husband and wife serving in different places. In
this case, the husband was in service near Ajmer and the wife worked in Adipur. On the
wife’s refusal to quit her job, the husband moved the petition for restitution of conjugal
rights.

The court held that if there is no refusal on the part of the wife to allow access to her husband
and no reluctance on her part in going to her husband, then the mere refusal on her part to
resign her job is sufficient ground for the husband to seek relief for restitution of conjugal
rights.Hence the petition was dismissed.

Burden of Proof

Restitution of conjugal rights can be claimed when the other party to the marriage has
withdrawn from conjugal society without and reasonable care.It is for the party who has
withdrawn from conjugal society to show valid excuse. This excuse should be reasonable and
convincing.

The facts that the aged parents of the husband are residing with him or that the wife has to
look after her deceased father’s lands are not reasonable excuses. However a wife would
bejustified in leaving her husband is she is forced to non-vegetarian food or drinking alcohol
against her wishes.

CONCLUSION

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
In conclusion, while Section 9 of the Hindu Marriage Act, 1955 provides for the restoration
of conjugal rights, it is critical to analyse the facts of each case as well as the potential
violation of personal liberty before pursuing this remedy.

Finally, Section 24 of the Hindu Marriage Act, 1955 is an important clause that provides
relief to spouses who may require financial support while matrimonial proceedings are
pending. The provision ensures that the court has the authority to order the respondent to pay
the applicant maintenance, guaranteeing that the applicant does not go without financial
assistance during the procedures.

Regardless of whether this therapy is helpful to the general public, it is important to

understand its potential. Indian tradition dictates that partners should make a conscious effort
to live together and maintain their relationship. This element offers these communities a
strong legal foundation, but on the other hand, it permits two people who would rather not
live together to survive because a union created via coercion cannot last.

BY-VINAY KUMAR
SECTION-B (LSL)