FAMILY LAW -I

UNIT 1 LECTURE 3

GUNJAN AGRAHARI
Assistant Professor Law DME, Noida

1 of 24
 OBJECTIVE & OUTCOME

Objective: The objective of this lecture is to apprise the

students with the laws relating to matrimonial
remedies in reference to restitution of conjugal rights.

Outcome: Student will be made aware regarding the

modes of reconciliation between spouses in case one
has left the company of other without any reasonable
cause.

2 of 24
 TEXT BOOKS AND REFERENCES
• Text Books:
• 1. Paras Diwan, Modern Hindu Law, Allahabad Law
Agency, 1993
• 2. Mulla, Principles of Hindu Law, Lexis Nexis, 2007
• References:
• 1. Kusum, Marriage and Divorce Law Manual, Universal
Law Publishing Co. Pvt. Ltd.,2000
• 2. B.M. Gandhi, Family Law, Eastern Book Company, 2012
• 3. Paras Diwan – Family Law, Allahabad Law Agency, 2001

3 of 24
 Unit-I: Hindu Marriage and Dissolution
(Lectures -10)

• a. Institution of Marriage under Hindu Law

• i. Evolution and Concept of the Institution of

Marriage

• ii. Forms, Validity and Voidability of Marriage

4 of 24
• b. Matrimonial Remedies

• i. Restitution of Conjugal Rights S. 9, HMA, 1955

• ii. Judicial Separation S. 10, HMA, 1955

• iii. Dissolution of Marriage : Theories, Forms of

Divorce, Grounds S. 13, HMA, 1955

• v. Divorce by Mutual Consent S. 13-B, HMA, 1955

• v. Irretrievable Breakdown as a Ground for

Dissolution S. 13 (1-A) HMA, 1955 5 of 24
 Section 9 of The Hindu Marriage Act, 1955

• S.9 Restitution of conjugal rights.

• 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reasonable excuse, withdrawn from the society of the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.
6 of 24
• 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be on the person who has withdrawn from the society.
• INTRODUCTION
• Marriage under all matrimonial laws is union imposing
upon each of the spouses certain marital duties and
legal rights. The necessary implication of marriage is
that parties will live together.
• So after marriage if either of the spouses without
reasonable excuse withdraws himself or herself from
the society of the other then aggrieved party has a legal
right to file a petition in the matrimonial court for
restitution of conjugal rights.
7 of 24
• The court on being satisfied that there is no legal ground for
refusal may pass a decree of restitution of conjugal rights.
• It is a positive remedy that requires both parties to the
marriage to live together and cohabit.
• The restitution of conjugal rights is a part of the personal
laws of the individual, thus they are guided by ideals such as
religion, tradition and custom.
• A very important feature of restitution of conjugal rights to
be emphasized is that it is a remedy is aimed at preserving the
marriage and not at disrupting it as in the case of divorce or
judicial separation.

8 of 24
 MEANING
• Conjugal right means the right to stay together by virtue
of entering into a marital bond with the life partner.
• Restitution of conjugal rights basically comprises of two
major words, “Restitution” and “Conjugal Right”.

• RESTITUTION: The restoration of something lost.

• CONJUGAL RIGHT: rights relating to marriage or the

relationship between husband and wife.

9 of 24
 ..
A decree of restitution of conjugal rights implies that the
guilty party is ordered to live with the aggrieved party. A
husband or wife can file a petition for restoration of their
rights to cohabit with the other spouse.

But the execution of the decree of restitution of conjugal

rights is very difficult. The court though is competent to
pass a decree of restitution of conjugal rights, but it is
powerless to have its specific performance by any law.

10 of 24
• The aggrieved party move a petition for a decree of divorce
after one year from the date of the passing of the decree
and the competent court can pass a decree of divorce in
favour of the aggrieved party.(Section 13 (1A) (ii)

• ENFORCEMENT
• The decree of restitution of conjugal rights can be enforced
by the attachment of property, and if the party complained
against still does not comply, the Court may also punish
him or her for contempt of court.

11 of 24
• But under no circumstances the court can force the
erring spouse to consummate marriage.
• Decree of restitution of conjugal rights could be
passed in case of valid marriages only.

• OTHER LAWS
• Hindus under Section 9 of the Hindu Marriage Act,
1955, Muslims under general law, Christians under
Section 32 and 33 of the Indian Divorce Act, 1869,
Parsis under Section 36 of the Parsi Marriage and
Divorce Act, 1936 and to persons married according
to the provisions of the Special Marriage Act, Section
22 of the Special Marriage Act, 1954.
12 of 24
 ESSENTIALS OF RESTITUTION OF
CONJUGAL RIGHTS
1. The withdrawal by the respondent from the society
of the petitioner.
2.The withdrawal is without any reasonable cause or
excuse or lawful ground.
3.There should be no other legal ground for refusal of
the relief.
4. The court should be satisfied about the truth of the
statement made in the petition.

13 of 24
 Constitutional validity of the provision for
restitution of conjugal rights
• The constitutional validity of the provision for
restitution of conjugal rights has time and again been
questioned and challenged.
• The earliest being in 1983 before the Andhra Pradesh
High Court in 
• T.Sareetha v. T. Venkatasubbaiah (AIR 1983 AP.
356) 
• Hon'ble High Court held that the impugned section
was unconstitutional.

14 of 24
• In Harvinder Kaur v. Harminder Singh (AIR 1984
Delhi 66), judiciary again went back to its original
approach and help Section 9 of Hindu Marriage Act
as completely valid. 
• Ultimately Supreme Court in 

• Saroj Rani v. Sudharshan (AIR. 1984 SC 1562)

• Upheld the constitutional validity of the Section 9 of
the Hindu Marriage Act, 1955 and over-ruled the
decision given in T. Sareetha v. T. Venkatasubbaiah.

15 of 24
• Gender Discrimination
• The concept of gender discrimination has not been
incorporated in the Hindu Marriage Act, 1955 and all are
treated as equals under the Section 9.
• There is no classification of sexes in Section 9 and all equals
have been treated equally in this area.
• Burden of proof under Section 9 of the HMA
• Burden of proof operates at two levels. Firstly, burden of proof
is on the aggrieved/petitioner who needs to prove that the
respondent has withdrawn from his society. Once that burden
is discharged by the petitioner, it falls on the respondent to
prove that there exists a reasonable excuse for the withdrawal.
•

16 of 24
 In all restitution cases, burden of proving the case
embodies at two levels.

The primary burden lies on the husband, who is most

cases happens to be the petitioner. He or the petitioner
has to convince the Court that his wife or the respondent
has withdrawn from the matrimonial society.

17 of 24
• After the following is proved, the burden of proof
shifts on the wife or the respondent. Then the
respondent has to bear the burden of giving an
appropriate and convincing reason for her
withdrawal.

• A valid reason for withdrawal of restitution can

include, any act which makes it impossible to live
together as well as matrimonial misconduct. If the
ground of withdrawal is reasonable and acceptable,
then the petition is dismissed.

18 of 24
• Grounds for refusal

• Under the Hindu Marriage Act, 1955 anything which

constitutes a ground for
• Nullity, dissolution of marriage (section 13) or
• Judicial separation (section 10)
• is a defence against a petition for restitution of
conjugal rights.
• A marriage in violation of the age prescribed under
Section 5 (iii) (age of parties to marriage) of the
Hindu Marriage Act, 1955 being neither void nor
voidable, a decree for restitution of conjugal rights
cannot be refused on the ground of the violation. 19 of 24
• First, if the respondent has a ground on which he or
she can claim any matrimonial relief;

• Second, if the petitioner is guilty of any matrimonial

misconduct;

• Third, if the petitioner is guilty of such act, omission

or conduct which makes it impossible for the
respondent to live with him; for instance, husband’s
neglect of his wife or the constant demand for dowry,
etc. are some reasonable ground for wife not to join
the company of her husband.
20 of 24
• SUGGESTIONS AND CONSLUSION
• When a marriage is plagued with quarrels and fights,
and when the times get arduous for partners to stay
with each other, staying away from each other for a
while may help.

• But when this ‘for a while’ does not end, and

continuous indefinitely, this doesn’t help the marriage
in any way, rather distances the couple.

• Restitution as a remedy in such cases will restore the

marriage.
21 of 24
• Restitution of conjugal rights is such a matrimonial
remedy, which will force the person to save the
marriage but it cannot guarantee its effectiveness.
Some section of people also say that it is against the
concept of natural law theory.
• An alternative solution would be referring the issue to
a non-biased, independent party. The Parliament of
India, once suggested that any matters under this
remedy should shift to arbitration. A major change
can be brought about by adapting arbitration in the
family matters.

22 of 24
• The benefit of involvement of such courts is that, it
will reduce the process of decision making and
deliver faster judgments enabling the couple to get a
quick relief. i.e. a divorce if the couple cannot by any
stretch of possibility live together, or a restitution if
the arbitrator is successful to bring some hope in the
marriage.

23 of 24
THANK YOU

24 of 24