CENTRE FOR ACADEMIC LEGAL RESEARCH | JOURNAL OF APPLICABLE LAW &

JURISPRUDENCE

Volume 1 | Issue 1

“Validity of Restitution of Conjugal Rights Under the Hindu Marriage Act, 1955”

By: Mona Das (2nd Year, Kirit P Mehta School of Law, NMIMS, Mumbai)

The following research/scholar work is under Centre for Study of Contemporary Legal Issues. The copyright
over this material is held by CALR as per the CALR Policy 2020.
Abstract
Restitution of Conjugal Rights is a matrimonial remedy provided under Section 9 the Hindu
Marriage Act, 1955 wherein if a spouse departs from the society of the other and starts living
separately without any reasonable excuse, then the aggrieved spouse can obtain a decree of
restitution of conjugal rights ordering the other spouse to come back. Even though the rationale
behind this remedy was to restore one’s marital rights but time and again the question of it
being violative of certain fundamental rights has been raised. Such type of a remedy does not
hold much weight in today’s evolving times and by looking at the history of cases, it does not
serve its intended purpose either. England, the country from where this remedy was borrowed
has abolished it long back but whether India should be following the same line is the focus of
this paper. The researcher seeks to analyse the validity of this matrimonial remedy, assess the
issues which arose in its relation and provide suggestions to the lawmakers in this regard.
Introduction
“I have not once known a restitution petition to be genuine, that these were merely a convenient
device either to enforce a money demand or to obtain a divorce”

~Sir J. Hannen, Russell v. Russell1

The matrimonial remedy of restitution of conjugal rights has its roots in England at a time when
marriage was considered as a deal between husband and wife and wife was considered a part
of a man’s property just like his chattels. A concept which has been derived from such an
ancient time on the lines of paternalism is bound to face criticism in today’s time when the
concept of marriage and society itself is evolving. It was added under the Hindu law as a
positive remedy requiring both the parties to a marriage to cohabit to protect the sacramental
nature of a marriage. This matrimonial relief has been misused numerous times to force the
other party to cohabit which goes against the fundamental rights of an individual. There have
been heated debates over the validity of this provision in today’s time but the provision
continues to exist. Is it justified to have a concept derived from ancient time exist in today’s
time? The present paper seeks to analyse the validity of this matrimonial remedy, assess the
issues which arose in its relation and provide suggestions to the lawmakers.

In the Indian society, marriage is considered to be a pious relationship that exists not only
between the husband and the wife but between their families too. Marriage has been accepted
as an important institution in the personal laws of all religions. However, at times certain
matrimonial disputes arise in the relationship and to solve it the Hindu Marriage Act, 1955
provides certain matrimonial remedies. These remedies are, restitution of conjugal rights,
judicial separation, void or voidable marriage and divorce. The Hindu law believes that upon
marriage husband and wife become one and that is why in case of complications in marriage
our legal system is bent on saving the marriage and divorce is often the last resort. 2 The paper
will discuss the matrimonial remedy of restitution of conjugal rights under the Hindu Marriage
Act, 1955 and its constitutional validity.

In layman terms, restitution refers to restoring something which is lost and conjugal rights are
the rights relating to marriage between husband and wife. Thus, restitution of conjugal rights

1
Russell v. Russell (1897) AC 395, p.455
2
Dr.Paras Diwan, Family Law 122,129 (10th ed. 2013)
refers to restoration of matrimonial rights. Under any matrimonial law, there are certain rights
and duties given to the parties which cannot be ignored. The most implied one is that the parties
will live together, which is a conjugal right. After a marriage is solemnized, the husband and
wife are legally required to spend their conjugal life together. But if either of the spouse leaves
or departs from the society of the other without giving any reasonable excuse then the aggrieved
spouse has the right to obtain a decree of restitution of conjugal rights in order to resume
cohabitation and order the spouse to come back. After such a decree has been passed, it will be
obligatory for the parties to cohabit. This is known as restitution of conjugal rights which is
defined under Section 9 3 of the Hindu Marriage Act. The aggrieved party in this case can file
a petition before the District Court and upon examining the veracity of the facts the court grants
a decree of restitution of conjugal rights. It is the responsibility of the person who has
withdrawn from the society of the other to provide a reasonable excuse for deserting his/her
partner.

Elements of Restitution of Conjugal Rights

 There should be withdrawal from the community. This means refusal to cohabiting,
having sexual intercourse and discharging other matrimonial obligations.
 The withdrawal has to be without any reasonable excuse. The reasonableness of the
excuse is to be judged according to the present-day society.4
 There should not exist any legal grounds for refusing the decree of restitution of
conjugal rights.
 The veracity of the statements presented in the petition should seem satisfactory to the
court.

Constitutional Perspective
Marriage gives rise to a plethora of rights and obligations which are cumulatively called
‘conjugal rights.’ Article 19(1)(c) pertains to the fundamental right of freedom of association
which is violated by a decree of restitution of conjugal rights. In Sukhram v. Misri Bai5 the
husband had claimed for a restitution decree in the court to bring his wife back but the wife
complained that her husband ill-treated her and her father-in-law had ill intentions towards her.
However, the court still passed a decree in favour of the husband. In this case if the father in

3
Hindu Marriage Act, 1955, § 9, No. 25, Acts of Parliament, 1955 (India)
4
Shanti Nigam v. Ramesh Chandra (1971) ALJ 67
5
Sukhram v. Misri Bai AIR 1979 MP 144
law molests the wife later on, the court’s decree will be responsible for it. Such is the effect of
a decree of restitution of conjugal rights. Yet again in the case of Atma Ram v. Narbada Devi6
the court granted a decree in favour of the wife even though the husband clearly stated that he
did not want to live with her thereby affecting his freedom of association.

Article 19(1)(e), which states that “all citizens have the right to reside and settle in any part of
the territory of India”, also stands violated in the case of restitution of conjugal rights when a
person is forced to live with their spouse. It also stands in violation of Article 19(1)(g), which
refers to the freedom to practice any profession. In the present social setup, women are equally
trying to be financially self-dependant and choosing to get a job to lead a dignified life. A
question is often raised that whether wife’ refusal to leave job amount to withdrawal from
society or not. In the case of Tirath Kaur v. Kirpal Singh7 it was held that refusal of a wife to
leave her job and live with her husband amounts to withdrawal from the society. But in later
cases, it has been held in that this is not a ground for granting a decree of restitution. 8 However,
the wide discretion given to the courts in interpreting the term “withdrawal from the society”
can lead to curtailment of this right in further cases.

Right to privacy forms an essential part of right to personal liberty under Article 21. In K.S.
Puttaswamy v. Union of India9, the Supreme Court has upheld the right to privacy as a
fundamental right which grants individuals complete autonomy over their body. This has also
been recognized by the European Convention on Human Rights, 1953. “RCR denied the woman
her free choice whether, when and how her body was to become the vehicle for the procreation
of another human being.” This right, along with other rights mentioned above, also stands
violated by the matrimonial remedy of restitution of conjugal rights. The futility of this remedy
has also been deliberated upon by many experts in English family law. For instance, Sir J.
Hannen in the case of Russell v. Russell10 opposed it by saying that “I have not once known a
restitution petition to be genuine, that these were merely a convenient device either to enforce
a money demand or to obtain a divorce.” The English family law has formed the basis of our
matrimonial laws and it is important to note that it this remedy has been abolished in England
by the Law Reforms (Miscellaneous Provisions) Act, 1947.

6
Atma Ram v. Narbada Devi AIR 1980 Raj 35
7
Tirath Kaur v. Kirpal Singh AIR 1964 Punj 28
8
Shanti Devi v. Ramesh Chandra Roukar and Ors. AIR 1969 Pat 27; Vibha Srivastava v. Dinesh Kumar
Shrivastava AIR 1991 MP 346
9
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
10
Russell v. Russell (1897) AC 395.
Lastly, Article 14 of the Constitution also stands violated with restitution of conjugal rights.
Equality implies the equality in thoughts, action and self-realization. Even though the Act
provides the remedy to both husband and wife (after amending Act 44 of 1964), the inherent
differences between a man and a woman cannot be ignored in our society. Married couples are
not always financially and socially equivalent. Most women still have a comparatively lower
social and economic position in the society as compared to men. 11Thus, most of these remedies
are taken advantage of by men and hence the Article stands violated.

Critical Analysis of Section 9 of Hindu Marriage Act, 1955

A report of High-Level Committee was released in 2015 on the Status of Women, Ministry of
Women and Child Development 12 wherein it was stated that restitution of conjugal rights has
no place in an independent India and hence Section 9 of the Act should be deleted. Even the
consultation paper on the reform of family law provided by the Law Commission of India has
also come to the same conclusion but no action has taken on it yet. It might be argued that this
matrimonial remedy exists to protect the conjugal rights which the spouse is entitled to after
marriage. But the existing matrimonial remedies and laws are already enough to protect the
conjugal relation as denial of consummation is recognized as a ground for divorce.

In India, majority of the petitions for decree of restitution of conjugal rights are filed by the
husbands. It was also noted in the report that most of the time this section is used to escape the
maintenance claims filed by wives and it serves no other purpose otherwise. This trend has
been seen in numerous cases wherein the husband has no intention to reconcile with the wife
but only aims to escape the wife’s claim for maintenance. If the wife is unable to provide
reasonable cause behind living separately from her husband then she will not be entitled to
maintenance under Section 125 Cr.P.C. Also, there are cases when petition is filed under
Section 9 only to frustrate the claim of judicial separation or divorce which happened in
Annapuranamma v. Appa Rao13 wherein when a wife filed for divorce on the ground of
husband suffering from leprosy, the husband filed for a decree of restitution. This conduct of
the husband shows that he intended to delay the proceedings for divorce and harass the wife.
This is because if the parties fail to follow the decree of cohabitation after passing of the decree
for restitution of conjugal rights for one year, then it becomes a ground for divorce

11
Ayush Raina, Constitutional Validity of Restitution of Conjugal Rights, Centre for Constitutional Research and
Development (2020)
12
Pam Rajput, The Report by High-Level Committee on Status of Women, Ministry of Women and Child
Development (2015)
13
Annapuranamma v. Appa Rao AIR 1963 AP 312
under Section 13(1-A) of the Hindu Marriage Act, 1955.14This goes against the entire purpose
of Section 9 which is to foster reconciliation between husband and wife and prevent divorce.
Moreover, if an individual does not comply with the decree then his/her property can also be
attached under Rule 32(1) of CPC.

In the case of T. Sareetha v. T Venakata Subbaiah15 Section 9 of HMA was declared

unconstitutional because of it being violative to right to privacy under Article 21. Justice
Chaudhary observed that this remedy is the gravest form of invasion of right to privacy and
deprives the spouse of the right to control over her body by coercing her to have sexual
intercourse. He also traced the effectiveness of this remedy in history and observed that it serves
no social good. “The state by coercion can neither soften the ruffled feelings between a couple
nor can it clear the misunderstanding between them.” However, this judgement was questioned
the very next year in the Delhi High Court and the constitutionality was upheld in the case of
Harvinder Kaur v. Harmander Singh Choudhry16 Justice Rohatgi criticized the interference of
constitutional law in matrimonial laws. He asserted that this will destroy the institution of
marriage in totality.

Thereafter, the matter came before the SC in the case of Saroj Rani v. Sudarshan Kumar
Chadha17 wherein the judgement in T. Sareetha was overruled. Section 9 was held not to be
violative of Article 21 of the Constitution because the main purpose of the remedy is
cohabitation and consortium and not enforcing sexual relations between the couple. Even
though the court said that sexual relations do not form the whole component of marital
consortium, it did say that it is an important element of conjugal relations. The Supreme Court
herein did not take into consideration the fact that marital rape is still legal in India and the
husband can conveniently force his wife to have sexual intercourse without any repercussions.
It is not wrong to say that the decree can put the wife under the pressure of forceful sex and
strips her of her physical autonomy and dignity, breaks her right to privacy while submitting
to “forced cohabitation.”

Post verdicts like K.S Puttaswamy v. Union of India and Joseph Shine v. Union of India, in
March, 2019 a public interest litigation was filed by students of GNLU challenging the
constitutionality of Section 9 of HMA and Section 22 of Special Marriage Act. It was

14
Diganth Raj Sehgal, Does restitution of conjugal rights violate the right to privacy?,iPleaders (2020)
15
T. Sareetha v. T Venakata Subbaiah AIR 1983 AP 356.
16
Harvinder Kaur v. Harmander Singh, AIR 1984 SC 1562
17
Saroj Rani v. Sudarshan Kumar Chadha AIR 1984 SC 1562.
contended that the RCR is a coercive act which violates one’s sexual autonomy, the right to
live a dignified life and right to privacy guaranteed under Article 21. This petition has been
referred to a three-judge bench by former Chief Justice, Ranjan Gogoi and is currently pending
before the Supreme Court of India. It is hoped that the SC will take the international human
rights point of view into account while deciding this case and declare the remedy to be
unconstitutional.
Conclusion

The idea behind restitution of conjugal rights was based on a noble cause but with the passage
of time it has lost its importance and significance. In the current social setup, it does not lead
to the intended outcome. A horse can be brought to the water pond but cannot be forced to
drink the water, this clearly defines what happens with a decree of restitution of conjugal rights.
It can only force a couple to physical live together but the mental and emotional aspect is
completely ignored and that cannot lead to an effective relationship. A court ordering
restitution cannot suddenly crease out the emotional misgivings. In appearances though
harmless, this provision is capable of causing serious trouble and torture. Similar to any other
anachronistic remedy, restitution of conjugal rights has been adopted from a time when
marriage was a property deal in England and in today’s time even England has abolished it.
The courts in deciding cases under Section 9 has to consider the sexual cohabitation aspect and
the possibility of marital rape. Articles 14, 19 and 21 stands violated by these provisions and
hence the Section 9 should be declared unconstitutional.
Research/Scholar Index

 Russell v. Russell (1897) AC 395, p.455

 Dr.Paras Diwan, Family Law 122,129 (10th ed. 2013)
 Hindu Marriage Act, 1955, § 9, No. 25, Acts of Parliament, 1955 (India)
 Shanti Nigam v. Ramesh Chandra (1971) ALJ 67
 Sukhram v. Misri Bai AIR 1979 MP 144
 Atma Ram v. Narbada Devi AIR 1980 Raj 35
 Tirath Kaur v. Kirpal Singh AIR 1964 Punj 28
 Shanti Devi v. Ramesh Chandra Roukar and Ors. AIR 1969 Pat 27; Vibha Srivastava v. Dinesh Kumar
Shrivastava AIR 1991 MP 346
 K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
 Russell v. Russell (1897) AC 395.
 Ayush Raina, Constitutional Validity of Restitution of Conjugal Rights, Centre for Constitutional
Research and Development (2020)
 Pam Rajput, The Report by High-Level Committee on Status of Women, Ministry of Women and Child
Development (2015)
 Annapuranamma v. Appa Rao AIR 1963 AP 312
 Diganth Raj Sehgal, Does restitution of conjugal rights violate the right to privacy?,iPleaders (2020)
 T. Sareetha v. T Venakata Subbaiah AIR 1983 AP 356.
 Harvinder Kaur v. Harmander Singh, AIR 1984 SC 1562
 Saroj Rani v. Sudarshan Kumar Chadha AIR 1984 SC 1562.