FACULTY OF LAW

JAMIA MILLIA ISLAMIA UNIVERSITY

FAMILY LAW-II ASSIGNMENT

MATRIMONIAL RELIEFS

PRESENTED TO:
PROF. (DR.) KAHKASHAN Y. DANYAL

PRESENTED BY:
SHREY KUMAR GARG
B.A.LL.B.(Hons) SELF FINANCED
SEMESTER-V (2022-23)
ROLL NO. 57
STUDENT ID: 202004336
 ACKNOWLEDGEMENT

I would like to express my special thanks to my mentor-teacher Prof. (Dr.) Kahkashan Y.

Danyal, who gave me the golden opportunity to express my views on the topic Matrimonial
Reliefs. Without her constant support, this project would have been a distant reality.

I would also like to express my special thanks to the Dean of Faculty, Dr Eqbal Hussain for
their thorough counselling.

This work is an outcome of the unparalleled support that I have received from The Faculty of
Law, Jamia Millia Islamia University.

Thank You.

1
 TABLE OF CONTENTS

S No. Topic Page No.

1. Introduction 3

2. Nullity of mariage 3

3. Divorce 7

4. Judicial separation 14

5. Restitution of conjugal rights 15

6. Bars to matrimonial relief 19

7. Conclusion 20

2
 MATRIMONIAL REMEDIES

INTRODUCTION
When parties enter into a marriage, they are bound by certain rights and obligations. When
there is a breach of the matrimonial obligations, the affected spouse or sometimes either of
the spouse can approach the court of law for the grant of matrimonial remedies.

Under the Hindu Marriage Act, 1955, there are the following four matrimonial remedies:
A. Nullity of marriage (Sections 11 and 12)
B. Divorce (Section 13)
C. Judicial separation (Section 10)
D. Restitution of conjugal rights (Section 9)

A. NULLITY OF MARRIAGE (SECTIONs 11 and 12)

The remedy of nullity can be granted in the following two cases:

1. Void marriage (Section 11)
2. Voidable marriage (Section 12)

1. VOID MARRIAGE- Void marriages are void per se. They are not the valid
marriages. Under s.11 of the Hindu Marriage Act, a marriage is void if it is in
contravention of s.5(1), 5(iv) and 5(v) of the Act. 1

i. In contravention of s.5(i) (bigamous marriage).

S. 5(i) of the Act provides one of the conditions of a valid Hindu marriage act, that is during
the solemnisation of the marriage, neither party has a spouse living at the time of the
marriage.

If a second marriage is done during the persistence of the previous marriage, during the
lifetime of the spouse, such marriage is void under s.11 and is also liable for punishment for
bigamy.2

1
The Hindu Marriage Act (Act 25 of 1955), s.11.
2
Id, s.17.

3
Note- Solemnisation of 1st marriage, as well as the second marriage, is essential for the
prosecution of bigamy. That is, if ceremonies of 1st or 2nd marriage is not done properly,
there won’t be valid marriage and the 2nd marriage would be valid and prosecution for
bigamy will fail.

In M.M. Malhootra v. Union of India,3 Supreme Court held that the offence of bigamy is
committed only if required ceremonies were performed for the solemnisation of the marriage.
Also held that a prosecution for bigamy will fail if what is established is that some sort of
ceremonies (not the essential ceremonies as prescribed by law or custom) were performed
with the avowed purpose that the parties were to be taken as married, and it is immaterial
even if it is established that the parties intended seriously to marry and thought that the
ceremonies performed bj' them would confer marital status on them.

In Dr. A.N. Mukherji v. State,4 it was held that if the 2nd marriage is not solemnised,
prosecution for bigamy will fail. Mere intention of parties to marry is not sufficient,
ceremonies must have to be performed.

Who can file the petition for nullity in case of bigamous marriage?
It is settled that only the affected parties of the void marriage can bring a petition for nullity.
The question here is, can 1st wife file a petition under s.11 of the Act in case of a bigamous
marriage?
In Shankarappa v. Basamma,5 it was held that If a husband (or wife) is about to take a second
wife (or husband), the first wife (or husband) can ask for an injunction from the court. A suit
for perpetual injunction by one spouse against the other can be filed under Section 9, C.P.C.
read with Section 38, Specific Relief Act, 1963.

ii. In contravention of s.5(iv) (marriage within the degrees of prohibited

relationship)

S. 5(iv)- A marriage between two Hindus may be solemnised if the parties are not within the
degrees of prohibited relationship unless the custom or usage governing each of them permits
of a marriage between the two;

3
AIR 2006 SC 80.
4
AIR 1969 All 489.
5
AIR 1964 Mys 247.

4
S. 2(g) defines “degrees of prohibited relationship”- two persons are said to be within the
degrees of prohibited relationship-
a. If one is a lineal ascendant of the other; or
b. If one was the wife or husband of a lineal ascendant or descendant of the other; or
c. If one was the wife of the brother or of the father’s or mother’s brother or of the
grandfather’s or grandmother’s brother of the other; or
d. If the two are brother and sister, uncle and niece, aunt and nephew, or children of
brother and sister or of two brothers or of two sisters.

Marriage done in contravention of the above provision will be a void marriage under section
11 and would also be liable for punishment of simple imprisonment which may extend to one
month, or with a fine which may extend to one thousand rupees, or with both.6

iii. In contravention of s.5(v) (marriage within sapindas)

S. 5(v) states that a marriage between two Hindus may be solemnised if they are not sapindas
of each other unless the custom or usage governing each of them permits a marriage between
the two.
S. 2(f) defines “sapinda relationship” as with reference to any person extends as far as the
third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive)
in the line of ascent through the father, the line being traced upwards in each case from the
person concerned, who is to be counted as the first generation. And, two persons are said to
be “sapindas” of each other if one is a lineal ascendant of the other within the limits of
sapinda relationship, or if they have a common lineal ascendant who is within the limits of
sapinda relationship with reference to each of them.

Marriage done in contravention of the above provision will be a void marriage under section
11 and would also be liable for punishment of simple imprisonment which may extend to one
month, or with a fine which may extend to one thousand rupees, or with both.7

6
The Hindu Marriage Act (Act 25 of 1955), s.18(b).
7
Ibid.

5
 2. VOIDABLE MARRIAGE
Unlike void marriages, voidable marriages remain valid and binding and continue to subsist
for all purposes and parties share the status of husband and wife unless one of them
challenges the validity of the marriage and the court declares it to be void.

Under s.12 of the Hindu Marriage Act, the marriage shall be voidable and may be annulled
by the court if-
12(1)(a)- That the marriage has not been consummated owing to the importance of the
respondent; or

12(1)(b)- That the marriage is in contravention of s.5(ii) (incapable of giving consent due to
unsoundness of mind or if capable of giving valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of
children).

12(1)(c)- That the consent of the petitioner, or where the consent of the guardian in the
marriage of the petitioner [was required under section 5 as it stood immediately before the
commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the
consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony
or as to any material fact or circumstances concerning the respondent].

Note- No petition for annulling the marriage on this ground shall be entertained if (i) the
petition is presented more than one year after the force had ceased to operate or, as the case
may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent,
lived with the other party to the marriage as husband or wife after the force had ceased to
operate or, as the case may be, the fraud had been discovered.8

12(1)(d)- That the respondent was at the time of the marriage pregnant by some person other
than the petitioner.

Note- No petition for annulling a marriage on this ground shall be entertained unless the
court is satisfied that (i) the petitioner was at the time of the marriage ignorant of the facts
alleged; and (ii) that proceedings have been instituted in the case of a marriage solemnised
before the commencement of this Act within one year of such commencement and in the case
of marriages solemnised after such commencement within one year from the date of the

8
The Hindu Marriage Act (Act 25 of 1955), s.12(2)(a).

6
marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken
place since the discovery by the petitioner of the existence of the said ground.9

Note- Absence of consent or free consent is nowhere a ground to make the marriage void or
voidable. That is, merely because the marriage is being done without the consent of the
parties, it cannot become a void or voidable marriage.

B. DIVORCE (SECTION 13)

There are three categorical theories for granting divorce under section 13 of the Act:
1. Fault theory
2. Breakdown theory
3. Consent theory

1. FAULT THEORY [SECTIONS 13(1) AND 13(2)]

a. SECTION 13(1)- AVAILABLE TO BOTH PARTIES

13(1)(i)- ADULTERY
That if after the solemnization of the marriage, if the party had voluntary sexual intercourse
with any person other than his or her spouse, then the petitioner can file a petition for divorce
under this ground.
Standard of proof- Proof of intercourse must be there and it depends on circumstantial
evidence.

In Das v. Das,10 the husband spending time with prostitutes is not proof of adultery. There
shall be proof of intercourse.

In P. v. P., the wife was found in a semi-naked condition in a hotel with strangers. Court held
that there is no adultery as there is no standard of proof.

In Rajeev v. Baburao,11 the husband complained about the adulterous activities of the wife
without concrete proof. Court held that the husband should not prove his reputation a proof
of adulterous activities must be there.

9
Id, s.12(2)(b).
10
AIR 1982 MP.
11
1995 TNLJ 239.

7
In Nandini dalela v. Deepak,12 the wife committed act of adultery but the husband condoned
it. Court held that no divorce can be granted because of s.23(1)(b).

In Thimmappa Dasappa v. Thimmavva Kom Thimmappa,13 wife was absent from her house
and was found to be in a stranger’s house. Court held that there was adultery and granted the
divorce.

Author’s views- The case of Thimmappa Dasappa was decided wrongfully as the court did
not follow the precedents on this point and failed to ignore that for constituting adultery as a
ground for divorce, there must be proof of intercourse. Mere doubt about the character or
background won’t prove an adulterous act. The position must be equal for both men and
women. That is, if the husband is found with a woman or if a wife is found with a man, the
position of law should be the same in these cases.

13(1)(ia)- CRUELTY
There is no definition of cruelty in the Hindu Marriage Act. However, it is being defined
under s.2(viii) of the Dissolution of Muslim Marriages Act 1939.

The English case of Russel v. Russel,14 defines cruelty as To constitute cruelty, there must be
a danger to life or injury to health, both bodily or mental, or reasonable apprehension of it.
This definition is not applicable in India.

Cruelty is something more than the ordinary ruff and tuff. In Indira Gangele v. S.K.
Gangele,15 it was held that only mere unhappiness or unruly temper or whimsical nature is
not enough to grant the divorce.

The court would also take into consideration the upbringing of the party to check whether
there was cruelty or not.

Note- Intention or mens rea is irrelevant in checking the cruelty.

12
AIR 2002 Raj.
13
1971 SCC OnLine Kar 318.
14
(1897) AC 395.
15
AIR 1993 MP.

8
In V. Bhagat v. D. Bhagat,16 the husband acted in a fit of insanity which caused cruelty to the
wife. Supreme Court held that conduct of the husband would constitute cruelty even though
he did not have the intention to cause cruelty.
In Shobha Rani v. Madhukar Reddi,17 Supreme Court enlarged the concept of cruelty and
held that demand for dowry would also constitute cruelty.

In Sundar v. Santa Devi,18 the wife was locked up without food and ill-treated by the joint
family members and the husband did not raise his voice. Court held that husband’s
ommission to protect his wife amounts to cruelty.

In Savitri Balchandani v. Mulchand,19 the mother and son consorted towards the father and
the son grabbed the testicles of the father. Court held that cruelty was done by the wife
through her child.

Mental cruelty
In Dastane v. Dastane,20 the wife caused misery to the husband and his relatives. She used to
abuse profusely day and night and made false accusations against her husband and
father-in-law. She wanted to destroy the whole Dastane family. She also locked out husband
when she came from the office. Supreme Court held that the acts of the wife constituted
mental cruelty to husband.

13(1)(ib)- DESERTION
Explanation to this section defines “desertion” as the desertion of the petitioner by the other
party to the marriage without reasonable cause and without the consent or against the wish
of such party, and includes the wilful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate expressions shall be construed
accordingly.21

Categories of Desertion- Actual desertion; constructive desertion and wilful neglect.

Actual Desertion- 5 ingredients of actual desertion-

16
AIR 1994 SC 710.
17
1988 (1) SCC 105.
18
AIR 1962 Orrisa.
19
AIR 1987 Delhi 52.
20
AIR 1976 SC 1534.
21
The Hindu Marriage Act (Act 25 of 1955), s.13(1)(ib).

9
 ● Factum of Separation
● Animus deserdendi
● Without reasonable cause
● Without the consent of the other party
● For statutory period of 2 years.

The 2-year time of desertion begins when factum of separation and animus deserdendi exist
at the same time.

In Lachman v. Meena,22 the wife belonged to a business family and the husband was from a
poor family. She left her matrimonial home 1n 1954. She returned to the same town as her
husband but she met her friends and not her husband. Supreme Court held that there was
desertion on the part of the wife.

In Geeta Jagdish Mangtani v. Jagdish Mangtani,23 the wife deserted her husband after 7
months of marriage as the husband’s income is not sufficient. She started living with her
parents and gave birth to a child and did not return. There were no efforts on the side of the
wife to return back. Supreme Court held that there was desertion on the part of the wife.

Constructive desertion-
In Savitri Pandey v. Prem Chand Pandey,24 Supreme Court held that desertion means
withdrawing from matrimonial obligations and not withdrawal from the place. If a party
withdraws from cohabitation, it is he/she who is guilty of desertion, despite the fact that
he/she continues to live in the matrimonial home.

In Jyotish Chandra v. Meera,25 Partied married in 1945. The wife found husband sexually
abnormal. Husband went to England and when he returned, she found him colder. Wife went
to England to pursue her PhD. Wife realised that husband wanted her to live somewhere else.
They became strangers in the same house. Husband started beating wife and she left the
matrimonial home. Court held that desertion was on the part of the husband and it was due to
his conduct, wife left away.

22
AIR 1964 SC 40.
23
AIR 2005 SC 3508.
24
AIR 2002 SC 591.
25
AIR 1970 Cal 266.

10
In Bhagwati v. Sadhuram,26 wife filed suit for maintenance. She used to live in a rented
house. Husband filed divorce petition. Court held that there was an arrangement and
compromise so there was no desertion.

In Durga Prasanna Tripathy v. Arundhati Tripathy,27 parties were living separately for 14
years and wife was not ready to return. Court observed that the parties have reached to
no-return point and there is a lot of bitterness between them. Court granted divorce on the
grounds of desertion.

S. 13(ii)- That the other party has ceased to be a Hindu by conversion to another religion.

S. 13(iii)- That the other party is incurable of unsound mind, or has been suffering
continuously or intermittently from mental disorder of such a kind and to such an extent that
the petitioner cannot reasonably be expected to live with the respondent.
“Mental disorder” means mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.

S. 13(v)- That the other party has been suffering from venereal disease in a communicable
form.

S. 13(vi)- That the other party has renounced the world by entering any religious order.

S. 13(vii)- That the other party has not been heard of as being alive for a period of seven
years or more by those persons who would naturally have heard of it, had that party been
alive.

b. SECTION 13(2)- AVAILABLE ONLY TO WOMEN (WIFE)

Under s.13(2), the following are the four grounds where only the wife can file a petition for
getting the divorce-28

S. 13(2)(i)- In the case of any marriage solemnized before the commencement of this Act,
that the husband had married again before such commencement or that any other wife of the
husband married before such commencement was alive at the time of the solemnization of the
26
AIR 1961 Punj 152.
27
AIR 2005 SC 3297.
28
Id, s.13(2).

11
marriage of the petitioner. Provided that in either case the other wife is alive at the time of the
presentation of the petition.
This provision has become obsolete as it applies to the marriages solemnised before the
commencement of the Hindu Marriage Act.
S. 13(2)(ii)- That the husband has, since the solemnization of the marriage, been guilty of
rape, sodomy or bestiality.

13(2)(iii)- That in a suit under section 18 of the Hindu Adoptions and Maintenance Act,
1956, or in a proceeding under section 125 of the CrPC, a decree or order, as the case may be,
has been passed against the husband awarding maintenance to the wife notwithstanding that
she was living apart and that since the passing of such decree or order, cohabitation between
the parties has not been resumed for one year or upwards.

13(2)(iv)- That her marriage (whether consummated or not) was solemnized before she
attained the age of fifteen years and she has repudiated the marriage after attaining that age
but before attaining the age of eighteen years.
Note- This is similar to option of puberty in Muslim Law. the only difference is under
Muslim Law, once there is the consummation, repudiation cannot be done on this ground.
In B. Iylaiah vs B. Devamma,29 wife attained the age of 18 years but she came to know later
about her right to repudiate the marriage. Andhra Pradesh High Court granted her relief due
to reasonable delay.

2. BREAKDOWN THEORY [SECTION 13(1A)]

The intention of the parliament while enacting this provision was that if the parties are not
able to resume cohabitation within 1 year, their marriage is irretrievably broken down and
divorce can be granted.

13(1A)(i)- If there is no resumption of cohabitation between the parties to the marriage for a
period of one year or upwards after the passing of a decree for judicial separation, then either
party may present a petition for the dissolution of the marriage by a decree of divorce.

13(1A)(ii)- If there is no restitution of conjugal rights between the parties to the marriage for
a period of one year or upwards after the passing of a decree for judicial separation, then
either party may present a petition for the dissolution of the marriage by a decree of divorce.
29
AIR 1981 Andhra.

12
 3. CONSENT THEORY (SECTION 13B)

Under this section, the parties may get a decree of divorce on mutual consent.

In statute, there are three requirements to get a divorce by mutual consent but actually, there
are four grounds where decree for divorce can be granted by mutual consent-
a. Marriage had been solemnised.
b. Parties living separately for 1 or more years.
c. Parties are not able to live together.
d. That they have mutually agreed to get divorce.30

Note- The consent for getting divorce must not be obtained by force, fraud or undue
influence.31
In Raj Vinod v. Smt Durga Devi,32 parties were living separately for 16 years and both agreed
to get the divorce. Uttarakhand High Court granted divorce under s.13B.

In Veena v. State of NCT of Delhi, parties were living separately for 10 years and they agreed
to compromise and withdraw all pending suits against one another and since there was no
scope for reconciliation, Supreme Court granted divorce on the grounds of mutual consent.

In Indrawal v. Raman,33 the husband had filed a petition for divorce on the ground of wife's
adultery and desertion. Later on the parties compromised and wanted divorce on that basis.
The Allahabad High Court held that such a compromise was not unlawful and the court
treated the petition as one for divorce by mutual consent.

S. 13B(2)- That if both parties submit motion of divorce from 6 to 18 months and court
thinks fit, after making enquiry that avernments made in petition are true, then court may
grant divorce by mutual consent. That is, both parties must not withdraw their consent during
this cooling period.

Can divorce be granted if one party withdraws consent within 18 months?

30
The Hindu Marriage Act (Act 25 of 1955), s.13B(1).
31
Id, s.23(1)(bb).
32
2002 SCC OnLine Utt 38.
33
AIR 1981 All 151.

13
In Sureshta Devi v. Om Prakash,34 Supreme Court held that if one party withdraws consent,
there is no jurisdiction of the Supreme Court to grant divorce. Mutual consent to get divorce
should exist till the decree is passed.

However, Supreme Court overruled Sureshta case in Ashok Hurra v. Bipin Chandra Zaveri35
and held that Supreme Court can grant divorce if one party withdraws consent, under Article
142 of the Constitution.

In Anil Kumar v. Maya Jain,36 Supreme Court held that no court except Supreme Court can
grant divorce on withdrawal of consent by one party as it is an exclusive power of the
Supreme Court to do so under Article 142.

C. JUDICIAL SEPARATION (SECTION 10)

Under s.10 of the Act, the court may grant the decree of judicial separation on the grounds
same as those provided for divorce under s.13(1) and s.13(2) of the Act37 but the only
difference in judicial separation is that, unlike divorce, the marital status does not end in case
of judicial separation. Judicial separation merely suspends marital rights and obligations
during the period of subsistence of the decree; parties continue to be husband and wife.

Note- Even though the petitioner approaches the court for divorce, the court may grant the
decree of judicial separation depending upon the facts and circumstances of the case, as the
court thinks fit.38

The purpose of granting judicial separation is to give a second chance to the parties to the
marriage to introspect about their decision. This is because if they live separately, they might
think that they might be able to live together in the future.

When judicial separation is ground for divorce- If there is no resumption of cohabitation

between the parties to the marriage for a period of one or more years after the passing of a

34
AIR 1992 SC 1904.
35
(1997) 4 SCC 226.
36
(2009) 10 SCC 415.
37
Id, s.10(1).
38
Id, s.13A.

14
decree for judicial separation but there must be circumspection and investigation for
rescinding that.39

In Mst. Godabai v. Narayan Zingaji,40 a decree of judicial separation was passed against the
appellant (wife) and later, under s.10(2), she wants the decree to be rescinded as she is not
repentant and will not misbehave with the respondent (husband). Madhya Pradesh High
Court held that since there was no evidence to support the truthfulness of the averments made
in the petition, the court could not rescind the decree of judicial separation.

S.10(2)- states that the court may rescind the decree of judicial separation if it considers it
just and reasonable to do so, on the petition filed by either party.

In S. Narasimha Bhandary v. V. Vijaya Bai,41 Karnataka High Court held that there is no
ground laid down under s.10(2) for rescinding the decree of judicial separation. However, it
allows the court to rescind that decree on just and reasonable cause.

D. RESTITUTION OF CONJUGAL RIGHTS (SECTION 9)

The Jewish law provided the remedy of restitution of conjugal rights. From Jewish law, the
remedy was adopted in English common law and from English law, it came to Indian law. A
decree of restitution of conjugal rights implies that the guilty party is ordered to live with the
aggrieved party. The concept of restitution of conjugal rights owes its origin to the ancient
days when the concept of marriage was based on the proprietary rights of the husband. The
wife was considered the property of her husband and was, therefore, required to live at all
times in the home provided by the husband and if she refused to do so or ran away, she could
be compelled to live with him, almost the same way as a cow which ran away from master's
shed could be brought back and tied to its post.42

Conditions to get a decree of restitution of conjugal rights-43

Four conditions under s. 9 of the Hindu Marriage Act are:
● Withdrawal from the society of another spouse.

39
Id, s.13(1A)(i).
40
1972 SCC OnLine MP 52.
41
AIR 1978 Kar 115.
42
Paras Diwan and Peeyushi Diwan, Modern Hindu Law 191 (Allahabad Law Agency, 24th Edition, 2019).
43
The Hindu Marriage Act (Act 25 of 1955), s.9.

15
 ● Such withdrawal is to be done without reasonable excuse.
● Court is satisfied with the truth of the statements made in such petition.
● There is no bar to the matrimonial relief under s. 23 of the Act.

The constitutional validity of s.9-

In T Sareetha v. T. Venkata Subbaih,44 Andhra Pradesh High Court held that s. 9 of the Hindu
Marriage Act is unconstitutional as it violates the right to privacy and human dignity under
Article 21 of the Indian Constitution. Further observed that it denies the woman her free
choice whether, when and how her body is to become the vehicle for the procreation of
another human being. State coercion of this nature can neither prolong nor preserve the
voluntary union of husband and wife in matrimony.

In Harvinder Kaur v. Harmender Singh,45 Delhi High Court held that s. 9 of the Act is
unconstitutional as it attempts to bring cohabitation between two estranged parties and
violates their right to life, personal liberty and privacy guaranteed under Article 21 of the
Constitution.

In Saroj Rani s Sudarshan,46 Supreme Court overruled the above two judgements and while
upholding the constitutional validity of s. 9 of the Act held that it is not violative of Articles
14 and 21 of the Constitution if its purpose is understood in its proper perspective and if its
method of execution is kept in view. The remedy of restitution aims at cohabitation and
consortium and not merely sexual intercourse. The object of the restitution decree is to bring
about cohabitation between the estranged parties, i.e., so that they can live together in the
matrimonial home in amity.

Recently, students of GNLU have approached the Hon’ble Supreme Court under the PIL to
challenge the constitutional validity of s.9 of the Act on the grounds that even though the
statute is gender-neutral with reference to its text, it is discriminatory in its real sense and
argued that in order to check the validity of legislation, the Court must have regard to its real,
direct and inevitable effect and not on its outward form. Thus, if the wife withdrew from the

44
AIR 1983 AP 356.
45
AIR 1984 Del 66.
46
(1984) 4 SCC 90.

16
society of the husband, she could be compelled to join the husband. The provisions are
steeped in stereotypes of women and their roles in a marriage.47

Author’s view- If one spouse has withdrawn from the society of other, then calling that
spouse to live with the other one is a violation of his or her personal liberty and unjustified
state intervention in the matters of personal choice and family matters. Therefore, there must
be an attempt at introspection and conciliation between the parties as to why one is living
separately from the other. And if after attempts of reconciliation by one party, the other party
still decides to live separately, then making the other spouse live with the other one, without
his or her consent, is a violation of the right to privacy and choice guaranteed under Article
21 of the Indian Constitution. Hence, the remedy of restitution of conjugal rights is less sound
in the present times where the wife is not the chattel or property of the husband. With this
view, the author believes that section 9 of the Act should be declared unconstitutional by the
Hon’ble Supreme Court.

One Component of restitution of conjugal rights- That the wife is living separately for
some reasons and she also has the right to claim maintenance.
This is given under s. 18(2) of the Hindu Adoption and Maintenance Act that A Hindu wife
shall be entitled to live separately from her husband without forfeiting her claim to
maintenance if-
a. if he is guilty of desertion, that is to say, of abandoning her without reasonable cause
and without her consent or against her wish, or of wilfully neglecting her;
b. if he has treated her with such cruelty as to cause a reasonable apprehension in her
mind that it will be harmful or injurious to live with her husband;
c. Omitted.
d. if he has any other wife living;
e. if he keeps a concubine in the same house in which his wife is living or habitually
resides with a concubine elsewhere;
f. if he has ceased to be a Hindu by conversion to another religion;
g. if there is any other cause justifying her living separately.

On these grounds, the wife is entitled to live separately without forfeiting her claim to
maintenance.
47

https://www.scobserver.in/wp-content/uploads/2021/09/Writ_Petition_by_Ojaswa_Pathak_Restitution_of_Conj
ugal_Rights.pdf.

17
Coming to the reasonable excuse, courts have held that the husband's insistence that his wife
must live with his parents; the wife's reasonable apprehension that it would be unsafe to live
with the petitioner; the husband's forcing an educated Brahmin wife to eat meat and drink
liquor; husband having another wife; persistent nagging of a wife by husband's parents;
addiction to drink or drugs accompanied by violent temper; acts of physical violence short of
cruelty; overbearing, domineering and dictatorial conduct; false accusations of adultery or
immorality; persistent undue familiarity with a member of the opposite sex; and extravagance
in living; these would amount to a reasonable excuse.

In Ram Chandra v. Adarsh,48 the wife went to the parent's home for delivery. But the husband
did not care to go to see his wife and child even when the wife underwent a caesarean
operation though the nursing home was very near to his house. He did not go to his in-law's
house to fetch her. This was held to be a reasonable excuse.

In Ashok v. Shabnam,49 on account of constant demands of dowry and her harassment on that
account, the wife was compelled to leave the matrimonial home. It was held that this
amounted to a reasonable excuse and she is entitled to get maintenance.

In Gopal Krishan Sharma v. Mithilesh Kumari Sharma,50 it was held that each case depends
on the facts and circumstances and it is not possible to state a reasonable excuse.

Working women and restitution of conjugal rights

In Halsbury’s Laws of England, it is stated that it is the husband’s duty to provide his wife
with a home according to his circumstances and there is no rule for either spouse to dictate
thier matrimonial home. The matter is to be settled by an agreement between parties by
process of reasonable accommodation.51

In N.R. Radhakrishan v. Dhanalakshmi,52 it was held that if the wife is employed, there is a
reasonable excuse to live apart and the petition for restitution of conjugal rights by the
husband was dismissed by the court.

48
AIR 1987 Del 9.
49
1989 Del 121.
50
1979 All 136.
51
Halsbury’s Laws of England, para 632 (4th edition, Vol. 13).
52
1975 Mad 333.

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In Smt Surjit Kaur v. Ujjal Singh,53 the court granted relief to the husband even if the wife
was employed away.

In Mirchumal v. Smt Devi Bai,54 the wife was employed away from the matrimonial home.
She asked her husband to come down to her place. The court dismissed the petition for
restitution of conjugal rights.

In Smt Swaraj v. KM Garg,55 the wife was earning more money than the husband and she
wanted the husband to resign and live with her. The husband wanted the wife to live with her.
The husband filed a petition under s.9 and the court dismissed it and held that there were
sufficient reasons for the wife to live separately.

In Alka Bhasker Barke v. Satchidananda Barke,56 the husband and wife both were employed
and they purchased a flat in Bombay together. Bombay High Court held that this flat is a
matrimonial home.

In Smt Sumanbai v. Anandrao Onkar,57 the court held that the husband challenging the
chastity of his wife is not entitled to get relief under s.9.

In Sneh Prabha v. Ravindra Kumar,58 Supreme Court felt that despite conciliation and much
efforts, there were no chances of husband and wife living together. So, instead of granting
relief under s.9, the court granted the divorce.

BARS TO MATRIMONIAL RELIEF

Section 23 of the Hindu Marriage Act deals with the situations where the parties are not
entitled to get the matrimonial relief.

S. 23(1)- The court shall not decree any relief in case of-

23(1)(a)- Any of the grounds for granting relief exists and the petitioner, except in cases
where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or

53
1978 SCC OnLine P&H 137.
54
AIR 1977 Raj 113.
55
AIR 1978 Del. 296.
56
AIR 1991 Bom 164.
57
AIR 1976 Bombay 212.
58
AIR 1996 SC 540.

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sub-clause (c) of clause (ii) of section 5, is in any way taking advantage of his or her own
wrong or disability for the purpose of such relief, and

23(1)(b)- Where the ground of the petition is the ground specified in s.13(1)(i), the petitioner
has in any manner been accessory to or connived at or condoned the act or acts complained
of, or where the ground of the petition is cruelty the petitioner has not in any manner
condoned the cruelty, and

23(1)(bb)- When a divorce is sought on the ground of mutual consent, such consent has been
obtained by force, fraud or undue influence, and

23(1)(c)- The petition, not being a petition presented under section 11), is presented or
prosecuted in collusion with the respondent, and

23(1)(d)- There has been an unnecessary or improper delay in instituting the proceeding, and

23(1)(e)- There is no other legal ground why relief should be granted.

S. 23(2)- It shall be the duty of the court, in every case, where it is possible so,, to make
every endeavour to bring about reconciliation between the parties before granting any
matrimonial relief.

CONCLUSION
We have discussed four matrimonial reliefs above. That is nullity of marriage, divorce,
judicial separation and restitution of conjugal rights. We have also discussed the situations
which may bar the parties to get any matrimonial relief and also that the court must try to
bring reconciliation between the parties before providing any matrimonial relief to the
parties.

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