When either the husband or the wife has , without reasonable excuse, withdrawn form the society of the other aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being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.
A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. 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. The non-compliance of the issued decree results to constructive destruction on the part of the erring spouse. At present as per the provisions available under the Indian personal laws, 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. 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. 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.
What is Section 9 of the Hindu Marriage Act, 1955?
Section 9 of the Hindu Marriage Act, 1955, deals with the restitution of conjugal rights. According to this provision, if either the husband or wife has withdrawn from the society of the other without a reasonable excuse, the aggrieved party can file a petition before the District Court seeking the restitution of conjugal rights. If the court is satisfied with the truth of the statements made in the petition and finds no legal reason to reject the application, it may pass a decree for the restitution of conjugal rights.
The essence of this provision is that the court is empowered to intervene and restore the relationship between the husband and wife by compelling the spouse who has withdrawn to resume cohabitation, provided there is no justifiable reason for the withdrawal.
Restitution of Conjugal Rights
- The expression restitution of conjugal rights means the restoration of conjugal rights which were enjoyed by the parties previously.
- Restitution of Conjugal Rights provided under Section 9 of Hindu Marriage Act, 1955 (HMA).
- The objective of Section 9 is to protect the sanctity and legality of the institution of marriage.
- The aggrieved party may apply to the District Court for restitution of conjugal rights if the husband or wife is withdrawn from the other partner’s company without any reasonable ground.
- The burden of proof is on the person who has withdrawn from society of the other person to prove that there has been a reasonable excuse to withdraw.
Essential Requirement for Seeking Relief under Section 9
- The parties must be legally married to one another.
- One should exclude themselves from another’s social circle.
- This withdrawal has to be made without a valid justification.
- The assertion that there is no legal justification for rejecting the decree must be proven to the court’s satisfaction.
Enforcement of the Decree for Restitution of Conjugal Rights
Section 9 also specifies how the decree for restitution of conjugal rights can be enforced. While the decree does not allow for the physical detention of the spouse, it can be enforced through financial coercion. Under Rule 32 of Order 21 of the Civil Procedure Code, the court may order the attachment of the property of the defaulting spouse if they fail to comply with the decree. This provision ensures that the aggrieved spouse has a legal remedy in case the decree is not respected.
In cases where a spouse continues to refuse to comply with the decree, the court may use the attachment of property as a means of enforcement. The non-compliance of the decree can also lead to consequences such as divorce. Under Section 13(i-A)(ii) of the Hindu Marriage Act, non-compliance with the decree for a period of one year may result in the aggrieved party filing for divorce on the grounds of constructive desertion.
The Burden of Proof
When a petition is filed under Section 9 for the restitution of conjugal rights, the burden of proof initially lies with the petitioner. The aggrieved spouse must prove that the other party has withdrawn from the society of the spouse without any reasonable excuse. If the petitioner successfully establishes that the respondent has withdrawn without justifiable cause, the burden of proof then shifts to the respondent. The respondent must provide evidence of a reasonable excuse for the withdrawal.
Cases of Section 9 of the Hindu Marriage Act, 1955
- Babita vs. Munna Lal : This recent case dealt with the issue of maintenance. Despite a decree for restitution of conjugal rights, the court ruled that the wife could still claim maintenance under Section 125 of the CrPC. The judgement reinforced the idea that the decree for restitution does not affect a spouse’s entitlement to maintenance if they are facing financial hardship.
- Saroj Rani vs. Sudarshan Kumar Chadha: In Saroj Rani vs. Sudarshan Kumar Chadha, the Supreme Court ruled that the decree for restitution of conjugal rights could only be granted when there was no justifiable reason for the withdrawal of one spouse. The Court emphasized that the purpose of the decree is not to force a spouse into living with the other against their will but to provide an opportunity for the couple to reconcile and settle their issues amicably.
- B.R. Syal vs. Ram Syal : This case emphasized that the essence of a decree for the restitution of conjugal rights is that the spouse seeking it must make an effort through the court to restore the relationship. The court plays a role in encouraging the couple to live together and resolve their differences.
