FAMILY LAW PROJECT

TOPIC: RESTITUTION OF CONJUGAL RIGHTS UNDER

HINDU MARRIAGE ACT, 1955

SUBMITTED TO: SUBMITTED BY:

MS.MADHAVI MARASAKATLA MEGHA PANDEY

LLB(3 YEARS)

SECTION- C

A3256117160
TABLE OF CONTENTS
1. Introduction.........................................................................................1
2. Historical background...........................................................................2
3. Section 9......................................................................................................3
4. Choice of matrimonial home and judicial response....................................3
5. Conditions for restitution of conjugal rights...............................................4
 Withdrawl from society……………………………...….............4
 Reasonable cause……………………………………..………….5
 No legal ground to deny the relief……………………...............5

6. Constitutional validity of sec.9...................................................................6

7. During this period whether the wife can ask for maintenance?.................7
8. Suggestion & conclusion………………………………. ……….............8
9. Bibliography……………………………………………………………….9

LIST OF CASES

CASES CITATION

1. Gurinder Singh v. Bhupinder kaur AIR 2008 NOC 1110 P&H

2. Mohinder Singh v. Preet Kaur AIR 1981 J K 25

3. Sushila Bai v. Prem Narayan 1958 Vol 1 HLR 1

4. CharanjitKaur v. Sham Singh AIR 1964 MP 225

5. T. Seertha v. T. Venkatta Subbaiah AIR 1983 AP 356
6. Harvinder Kaur v Harminder Singh AIR 1984 Del. 66
7. Saroj Rani v. Sudershan Kumar AIR 1984 SC 1562
1

INTRODUCTION

Marriage is one of the most important social institutions today. It forms the very basis of social
organization. Hindu shastras and law regard marriage as a sacrament which is eternal. It is
considered to be a contract by some as well. Marriage, whether considered to a contract or a
sacrament, confers the status of husband and wife on the parties to marriage, of legitimacy on the
children born out of the marriage and gives rise to certain spousal mutual rights and obligation of
spouses. This sacramental character of marriage has given rise to certain anomalies. The
declaration of Manu that “neither by sale nor by desertion is wife released from the husband”
was hitherto applied only to women and not men. Thus there was an element of inherent injustice
on the wife in Hindu law. After marriage the husband is entitled to the society of his wife and
vice versa. A need for legal action arises when one of the parties to the marriage withdraws from
the society of the other.

To counter such inequalities among spouses and to protect the sacramental aspect of marriage,
Hindu Marriage Act, 1955 was enacted which provided certain matrimonial remedies. One such
remedy is that of ‘Restitution of Conjugal Rights’ which is found under section 9 of the Hindu
Marriage Act, 1955. The foundation of the right is the fundamental rule of matrimonial law that
one spouse is entitled to society and comfort-consortium- of the other spouse and where either
spouse has abandoned or withdrawn from the society of the other without reasonable excuse. The
remedy of Restitution of Conjugal Rights is a new notion in Indian matrimonial jurisprudence
that finds its origin in the Jewish laws. The remedy was unknown to Hindu law till the British
introduced it in the name of social reforms. In fact it is the only matrimonial remedy which was
made available under the British rule to all communities in India under the general law. After
independence this remedy found place in the Hindu Marriage Act, 1955.1

Conjugal right is a matrimonial right which husband & wife have to each others society, comfort
& affection that is after marriage the wife is entitled to the society of her husband & vice-versa.
Marriage is administered by Personal laws which administer the terms like divorce, maintenance,
custody and restitution of conjugal rights.

1
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=797c51f7-0615-4fa8-b92e-
7d7d24d03689&txtsearch=Subject:%20Family%20Law (last visited-16th mar 2018)
2

HISTORICAL BACKGROUND

Marriage is administered by Personal laws which administer the terms like divorce, maintenance,
custody and restitution of conjugal rights.2

Like many anachronistic remedies, the restitution of conjugal rights dates back to the feudal era
in England, where marriage was considered a property deal, and wife was part of man’s
possessions like other chattels. A man’s wife was treated no more than a cow. If it ran away from
its master’s shed then it could be roped back.

It is quite unfortunate that many anachronistic common law actions were abolished in other
spheres, but they survived in case of matrimonial law and from there, they were introduced in the
laws and practices of the British colonies as well.

Restitution of conjugal rights is a remedy which was made available to members of all
communities at a very early period of the British rule in India. The remedy was unknown to
Hindu law till the British introduced it in the name of social reforms. After independence this
remedy found place in the Hindu Marriage Act, 1955.

In modern India, the remedy is available to Muslims under general law, to Hindus under section
9 of the Hindu Marriage Act,1955, to Christians under section 32 of Divorce act, to Parsis under
section 36 of the Parsi Marriage and Divorce Act and to persons marrying in the civil form under
section 22, Special Marriage Act.3

A husband has the right to make his wife live with him wherever he may choose to live. While
the duty of wife is to live with her husband .But there may be circumstances which compel both
the parties to live at different places. These situations may furnish reasonable or just excuse to
the wife to reside at different places.

It is the decision of the court to decide whether the situation allows the wife to live apart from
his husband. If your spouse has left you without giving any reasonable ground, the Hindu
Marriage Act 1955 gives you remedy in the form of Section 9 under the restitution of conjugal
rights.
2
https://blog.ipleaders.in/what-are-conjugal-rights-who-can-file-for-it-where-to-file-what-are-the-conditions-
relating-to-it/ (last visited-17th mar 2018)
3
http://racolblegal.com/restitution-of-conjugal-rights-under-hindu-law/ (last visited-17th mar 2018)
3

SECTION 9 of Hindu Marriage Act, 1955 provides that “When either the husband or the wife
has, without treasonable excuse, withdrawn from the society of the other, the aggrieved party
may apply, by petition to the District Court, for restitution of conjugal rights. The court, on being
satisfied of the truth of 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.”4

CHOICE OF MATRIMONIAL HOME AND JUDICIAL RESPONSE

The basic principles on which the location of the matrimonial home is to be determined by the
husband and the wife are based on common convenience and benefit of the parties. The disputes
giving rise to petitions for restitution of conjugal rights often arise in cases where the wives are
employed at different places or wives desire to live with the husband at the different place of his
employment or the wives wish that the husbands should live in the house of their in-laws. It is,
therefore, necessary to understand properly as to what is the law on choice of matrimonial home.
The idea of the matrimonial home appears to lie at the very centre of the concept of marriage in
all civilized societies.

In Gurinder Singh v. Bhupinder kaur5, Punjab and Haryana High Court observed that If a wife
is working at a place which is far away, from the place of residence of her husband, and she is
unable to come to the place of her husband daily, it cannot be said that she deserted the husband.
This shows that the now-a-days trend is titled more towards wife in choosing the place of
Matrimonial home.

This view faces criticism in the face of modern developing society, and the right of the wife, or
any woman for that matter, to work, not necessarily to help the economic condition at home. It is
also a deterrent to marriage, especially for women who are already working, as it shows that
women are to be treated as a mere appendage. The question still hangs whether the capabilities
of a wife are to be merely used as an instrument when the need arises.6

The idea of providing restitution by a decree is to preserve a marriage a tie as far as possible, by
enabling the court to intervene and enjoin upon the withdrawing party to join other.

4
Hindu Marriage Act, 1955
5
AIR2008 NOC 1110 P&H.
6
https://blog.ipleaders.in/restitution-of-conjugal-rights/ (last visited-17th mar 2018)
4

CONDITIONS FOR RESTUTION OF CONJUGAL RIGHTS

 Withdrawal by the respondent from the society of the petitioner.

 The withdrawal is without any reasonable cause or excuse or lawful ground.
 There should be no other legal ground for refusal of the relief.

 The court should be satisfied about the truth of the statement made in the petition.7

WITHDRAWL FROM THE SOCIETY

To proceed with establishing the area wherein the conjugal rights accrue, it is essential to draw a
boundary on such area. ‘Withdrawal from society’ does not necessarily have to mean complete
desertion or living separately. It can also mean-

 Withdrawal from sexual intercourse,

 Non-cooperation in the performance of marital obligations,
 Intention to abandon indefinitely
 Cessation of cohabitation by voluntary act of the Respondent-wife

MOHINDER SINGH V. PREET KAUR8

FACTS: In this case the parties were married for 6 months. The husband met with violence from
his brother and as a result of which he lost his eyesight and became blind. The wife went back to
her parents home and never returned back. The husband filed a suit for restitution of conjugal
rights but lost.

ISSUE: Is blindness of husband after marriage a reasonable ground for a wife to withdraw from
his society so as to defeat his petition for restitution under sec.9 of Hindu marriage act , 1955?

DECISION: The court held that the wife has reasonable ground to withdraw herself from the
society of his husband.

7
Dr. Paras Diwan, Modern Hindu Law , p.189 (Allahabad law agency, 23rd edition, 2017)
8
AIR 1981 J K 25
5

REASONABLE CAUSE

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.

The petition can be allowed only if the burden of proving the aforesaid conditions is
satisfactorily discharged. Once the petitioner has proved his case, the burden of proof then
shifts to the other party to prove the defence of a ‘reasonable excuse or cause’. Once the
petitioner has proved his case, the burden of proof then shifts to the other party to prove the
defence of a ‘reasonable excuse or cause’.

In Sushila Bai v. Prem Narayan9 the husband virtually dumped his wife and thereafter was
totally unresponsive towards her. This behaviour was held sufficient to show that he had
withdrawn from the society of his wife, and therefore the wife’s petition for restitution of
conjugal rights was allowed.

The defence to this principle lies in the concept of a ‘reasonable excuse’. If the respondent has
withdrawn from the society of his spouse for a valid reason, it is a complete defence to a
restitution petition.10 In Charanjit Kaur v. Sham Singh11 it was held that mere suspicion of
illicit relationship does not constitute reasonable excuse. 

NO LEGAL GROUND TO DENY THE RELIEF

If the court is satisfied with the truth or genuineness of the statement made in the petition and
there is no legal ground why the relief should not be granted the court will pass the decree of
restitution of conjugal rights under sec.9 of Hindu Marriage Act, 1955.

9
AIR 1964 MP 225
10
Shakuntala v. Babu Rao, AIR 1963 MP 10
11
1958 Vol 1 HLR 1
6

CONSTITUTIONAL VALADITY OF SECTION 9

Constitutional validity of Section 9 of the Hindu Marriage Act, 1955 became a subject matter of
debate as a result of the Andhra Pradesh High Court judgment in T. Seertha v. T. Venkatta
Subbaiah12 which is as follows:

FACTS: Sareetha was a famous filmstar got married to Venkatta Subbaiah, the petitioner. After
sometime, she left for parental home and remained there. Venkatta filed petition under sec.9 of
Hindu marriage act. On appeal the HC denied the relief and struck down sec.9 holding that it
violates the wife̕s right to privacy by compelling her to have sexual intercourse against he will.
The husband’s petition under sec.9 was dimissed.

DECISION: Justice P.A.Choudhary of the A.P.High Court held the section unconstitutional
since it offended Articles 14 and 21 of the Constitution. According to article 14, “The state shall
not deny to any person equality before the law or the equal protection of laws within the territory
of India”13. The guiding principle is that all persons and things similarly circumstanced shall be
treated alike both in privileges conferred and liabilities imposed. Justice Chaudhary of the
Andhra Pradesh High Court held S. 9 to be “savage and barbarous remedy violating the right to
privacy and human dignity guaranteed by Article 21 of the Constitution, hence void”.14The Delhi
High Court in Harvinder Kaur v Harminder Singh15 though had non-conforming views.16

The debate on the constitutional validity of Section 9 was settled by the Supreme Court judgment
in Saroj Rani v. Sudershan Kumar17

FACTS: In this case, the wife was married in 1975 and had given birth to two daughters during
her brief married life. She was turned out of her matrimonial house in 1977 and subsequently
12
AIR 1983 AP 356
13
Article 14, the Constitution of India
14
http://vikaspedia.in/social-welfare/women-and-child-development/restitution-of-conjugal-rights (last visited-
18th mar 2018)
15
AIR 1984 Del. 66
16
https://www.legalindia.com/restitution-of-conjugal-righta-comparative-study-among-indian-personal-laws/ (Last
visited-18th mar 2018)
17
AIR 1984 SC 1562
7

filed a petition to which she was granted an interim maintenance by the Court. The husband later
filed a consent memo for the passing of the decree and the decree of restitution of conjugal rights
was accordingly passed in favour of the wife. One year later, the husband applied for a divorce
under Section 13 (1-A) of the Hindu Marriage Act, 1955 on the ground that he and his wife had
lived separately during the one year period. The question of cohabitation arose where in the
spouses stayed together for a period of two days after the decree was passed. It was submitted
that the ground for divorce was unjustified and the husband was getting away with his ‘wrongs’.
This argument was based on the principles of natural law, i.e. justice, equity and good
conscience. It was further argued that the concerned section, that is Section 9 of the Hindu
Marriage Act violated Articles 14 and 21 of the Indian Constitution. 

DECISION: The Court granted the divorce but at the same time understanding the situation of
the wife and daughters, ordered the husband to pay a prescribed maintenance to the wife until
she remarries.

During this period whether the wife can ask for maintenance?
The decree of restitution of conjugal rights enjoin the parties to live together, thus there is no
justification in granting maintenance to the wife when decree is passed against her. If the wife ha
reasonable cause to withdraw herself from her husband’s society then she is entitled to
maintenance and separate residence.

The wife can claim maintenance under Section 25 of Hindu Marriage Act. This decree, if not
obeyed, the court will attach the judgment-debtor’s properties. Further, if this decree is not
observed for a time frame of more than a year, after the decree date then the divorce ground is
created.18

18
https://blog.ipleaders.in/what-are-conjugal-rights-who-can-file-for-it-where-to-file-what-are-the-conditions-
relating-to-it/ (last visited:18th mar 2018)
8

CONCLUSION & SUGGESTION

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. It serves to aid prevention of
the breakup of marriage, thus is a means of saving the marriage. So the restitution of conjugal
rights remedy tries in promoting reconciliation between the parties and maintenance of
matrimonial. It tries to protect the society from denigrating. But the final decision is that of the
parties whether to obey the decree of restitution of conjugal rights and to continue with the
matrimony or not.
At present women's are contributing and participating in every sphere, politics, business,
education, science and technology, media, sports, art and culture etc. However this is the one
face of coin and on the other side of coin is the hard truth of the Indian society. There is
systematic discrimination and neglect from early childhood of women's in India, which could be
in terms of inadequate nutrition, denial or limited access to education, health and property rights,
child labor and domestic violence. The fear of sexual violence has been a powerful factor in
restricting women's behavior and sense of freedom. The struggle against violence is actually the
struggle against the unequal distribution of power both physical and economic between the
sexes. It is important to address the root cause for the subordinate status of women in the Indian
society. Most importantly, there should be introduction of sharing of responsibility among men
and women. Third school regarding the choice of matrimonial home reflects the concept of share
responsibility to some extent. So it is, hereby, suggested that the judiciary should give a wide
meaning to the new evolving terms which should be a part of our daily life, so that we can give a
stress free and social equality in the true sense to the women.
9

BIBLIOGRAPHY

PRIMARY SOURCES
 Hindu Marriage Act, 1955
 Article 14, the Constitution of India
 Article 21, the Constitution of India

SECONDARY SOURCES
 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=797c51f7-0615-4fa8-b92e-
7d7d24d03689&txtsearch=Subject:%20Family%20Law
 https://blog.ipleaders.in/what-are-conjugal-rights-who-can-file-for-it-where-to-file-what-are-the-
conditions-relating-to-it/
 http://racolblegal.com/restitution-of-conjugal-rights-under-hindu-law/
 https://blog.ipleaders.in/restitution-of-conjugal-rights/
 Article 14, the Constitution of India
 http://vikaspedia.in/social-welfare/women-and-child-development/restitution-of-conjugal-rights
 https://www.legalindia.com/restitution-of-conjugal-righta-comparative-study-among-indian-personal-
laws/
 https://blog.ipleaders.in/what-are-conjugal-rights-who-can-file-for-it-where-to-file-what-are-
the-conditions-relating-to-it/
 Dr. Paras Diwan, Modern Hindu Law , p.189 (Allahabad law agency, 23 rd edition, 2017)