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Section 9 of the Hindu M arr iage Act, 1955

When either the husband or the wife has, without reasonable excuse, withdrawn from the societyof the other, the aggrieved party may apply, by petition to the district court, for restitution of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 decreerestitution of conjugal rights accordingly.

In Sushi la Bai v. Prem Narayan, the husband deserted his wife and thereafter was totallyunresponsive towards her. This behavior was held sufficient to show that he had withdrawn from

the society of his wife, and therefore the wifes petition for restitution of conjugal rights was

allowed. The defense to this principle lies in the concept of a reasonable excuse. If therespondent has withdrawn from the society of his spouse for a valid reason, it is a complete

defense to a restitution petition.

Opinions of the Court

The court will normally order restitution of conjugal rights if:

i. The petitioner proves that the respondent spouse has without reasonable excuse withdrawn

from his/her society

ii. The statements made by the aggrieved spouse in the application are true, and

iii. There is no legal ground why the petitioners prayer should not be granted

The court has held in various cases that the following situations will amount to a

reasonable excuse to act as a defence in this area:

i. A ground for relief in any matrimonial cause.

ii. A matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficiently

weighty and grave

iii. Such an act, omission or conduct which makes it impossible for the petitioner to live with the

respondent.

[quote]It is significant to note that unlike a decree of specific performance of contract, for

restitution of conjugal rights, the sanction is provided by the court where the disobedience tosuch a decree is willful that is deliberate, in spite of opportunities.[/quote]

During the time of introducing the provision for restitution of conjugal rights in the Special

Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in theParliament for and against it. In Shakil a Banu v. Gulam Mustafa, the Honble High Court

observed: The concept of restitution of conjugal rights is a relic of ancient times when slavery

or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India

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came into force, which guarantees personal liberties and equality of status and opportunity to

men and women alike and further confers powers on the State to make special provisions for

their protection and safeguard.

Checking The Constitutionality of Restitution of Conjugal rights

[quote]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. Venkatasubbaiahwhere the Honble High Court held that theimpugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder

Singh though had non-conforming views. Ultimately Supreme Court in Saroj Rani v.

Sudharshangave a judgment which was in line with the Delhi High Court views and upheld theconstitutional validity of the Section 9 of the Hindu Marriage Act, 1955 and over-ruled the

decision given in T. Sareetha v. T. Venkatasubbaiah.[/quote]

[highlight]The restitution of conjugal rights is one of the reliefs that are provided to the

spouses in distress in the institution of marriage by law. Decree of restitution of conjugalrights could be passed in case of valid marriages only. Apart from legislation relating to

matrimonial law, courts in India in case of all communities have passed decrees for

restitution of conjugal rights.[/highlight]

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