Restitution of conjugal rights under Hindu law

Marriage according to Hindu law is a sacrament. By saying that marriage is a sacrament it means that the primary function of marriage is the performance of religious and spiritual duties by married couple and that the union is a permanent one.

In order to maintain the permanancy of marriage, law provides for the provision of restitution of conjugal rights in the event of one party withdrawing from the society of the other without any reasonable cause. The law seeks to maintain a stability of marital relations and favors all attempts in order to prevent the breakdown of marriage.

Section 9 of the Hindu Marriage Act provides for the restitution of conjugal rights.

Section 9 states that: When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights land the court, on being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.

The essential provisions of this section are:

(1) One party has withdrawn from the society of the other,

(2) Such withdrawl is without any reasonable reason,

(3) The aggrieved party applies for the restitution of conjugal rights.

The object of decree of restitution of conjugal rights is to bring about cohabitation between the estranged parties so that they an live together in the matrimonial house with amity. It does not aim at forcing a person to sexual relationship. Further, the decree is granted if the reason for withdrawl is not reasonable. If the court finds that the petitioner is guilty then the decree of restitution of conjugal rights is not granted. Further, if after the passing of the decree, the parties do not cohabit continuously for one year, then it beomes a ground for dissolution of marriage under Section 13.

Reasonable grounds for withdrawal:

(A)   If there exists a ground on which the respondent can claim any matrimonial relief.

(B)   If the petitioner is guilty of any matrimonial misconduct.

(C)   If the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him.

Husband’s neglect of his wife[1] or the constant demand for dowry[2] is reasonable grounds for the wife to stay at her parent’s place.

Burden of proof:

The initial burden to prove that the respondent has withdrawn from the society of the petitioner is on the petitioner. Once that burden is discharged, it is for the respondent to prove that there exists a reasonable excuse for the withdrawal.[3]

Constitutional validity of Section 9

It has been contended in many cases that Section 9 of the Hindu Marriage Act, 1955, is violative of right to privacy under Article 21. In many cases the wife has stated that the Section is misused by husbands to force the wife into living with them against her wish. In the case of T Sareetha v T Venkata Subbaih[4], the court observed that Section 9 is violative of right to privacy and human dignity given under Article 21 of the Constitution and hence, ultra vires the Constitution. However, this was overruled by the Supreme Court in Saroj Rani v Sudarshan.[5]
Law seeks to provide stability of marriage, it does not force a person into unwanted relations. The decree is passed only when there is an unreaonable withdrawl of society. However, it maybe misused by husbands or wives into coercing their unwilling partners into cohabitation. Therefore, it is the duty of the courts to enquire judiciously and order accordingly.

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[1] Ram Chandra v Aadarsh AIR 1987 Del 99

[2] Ashok v Shabnam AIR 1989 Del 121

[3] Atmaram v Narbada AIR 1980 Raj 35

[4] AIR 1983 AP 356

[5] AIR 1984 SC 1562