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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Restitution of Conjugal Rights


INTRODUCTION:

The basic condition of marriage is that after marriage, the married couple must live together throughout the entire life sharing their pleasures and pain. However in certain cases, some disputes may arise between the husband and wife due to misunderstanding. To avoid these circumstances the Hindu Marriage Act, 1955providesrelief to the aggrieved parties. This paper deals with Restitution of conjugal rights provided in the section 9 of the Hindu Marriage Act, 1955.

RESTITUTION OF CONJUGAL RIGHTS UNDER THE HINDU MARRIAGE ACT, 1955

Restitution of conjugal rights means “to stay together”. It is the one and only remedy which can be filed against the deserted spouse by the other.

Section 9 of the Hindu Marriage act, 1955 defines,

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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”.

WHO CAN FILE RESTITUTION OF CONJUGAL RIGHTS

The aggrieved party either husband /wife who has affected by the other party due to withdrawal from society without the reasonable excuse can file the petition for restitution of conjugal rights in District Court under section 9 of the Hindu Marriage Act, 1955.

 

UNDER WHICH JURISDICTION RESTITUTION OF CONJUGAL RIGHTS CAN BE FILED:

Section 19 of the Hindu Marriage Act, 1955 specifies the jurisdiction for filing restitution of conjugal rights. In the civil court where –

Ø The marriage was performed

Ø The respondent resident at the time of filing petition

Ø The parties to the marriage resided together

BENIFIT INSECTION 9 WILL BEFULLFILLED ONLYUNDER FOLLOWING CONDITIONS

1.    The marriage between the parties should be a valid marriage and specify the conditions under section 5 of the Hindu Marriage Act,1955.

2.    Either of the spouse withdrawn from the society of another spouse without any reasonable excuse

3.    The court should be satisfied with the truth of statements specified in the petition

 Let us discuss these conditions in detail:

1.    valid marriage :

To get the relief in section 9 of the Hindu Marriage Act, 1955 it should be a valid marriage as specified under section 5 of the Hindu Marriage act, 1955.

 

 InParbia ram v.Thopali[i][AIR 1966 HP 20]  , in this case it  was held that the parties to the restitution of conjugal rights are not legally married or the marriage was not subsisting at the time of filing the petition . Then the question of granting restitution of conjugal rights does not even arise.

 

2.    Withdrawal from the society:

 

                                         The term “withdrawal from society” means the either spouse should have the clear intention to withdraw permanently from the matrimonial house, refuse to live together, withdraw permanently from conjugal relationship, refusal to have marital intercourse. If these kinds of intentions are present then it is considered as withdrawal from the society.

 

3.    The court should  satisfied with the truth of statement given in the petition:

 

The relief will be provided by the court on hearing the truth of statement provided in the petition.

 In this case Tradkaur v. Kirpalsingh[ii][AIR 1964 punj.28] the respondent (wife) with the consent of the husband joined a tailoring course. And after the completion of the course, she joined a job and stayed near her parental house. After few days husband asked his wife to resign her job and come back to the matrimonial house, but she refused to do. So her husband filed a case under section 9 of the Hindu Marriage Act, 1955 seeking remedy of restitution of conjugal rights. The court has to analyse the fact given in the petition and deliver the judgement rationally.

 

BURDEN OF PROOF

The burden to prove that the respondent has left the petitioner lies on the aggrieved spouse. If the aggrieved spouse proves then it is the duty of the respondent to prove that he /she has left the petitioner on the reasonable ground.

UNDER WHICH GROUNDS THE COURT CAN REJECT THE PETITION

The petition filed for restitution of conjugal rights can be rejected by the court on the following grounds:

Ø Cruelty by the husband/wife

Ø If the petitioner is found guilty of misconduct

Ø Failure to perform the marital obligations

CONSTITUTIONAL VALIDITY OF SECTION 9

Sometimes the decree given in favour of the husband under section 9 of the Hindu Marriage Act, 1955 may affect the wife from her personal liberty. The question here is whether the section 9 of this act violates the Article 14 & article 21 of the Indian constitution, 1950. This issue was dealt in the famous leading case T.Sareetha v. T. VenkataSubbiah[iii][AIR 1983 A.P  356]The facts of the case is sareetha a famous film star of south Indian industry got married to petitioner (venkatasubbiah) after some days she went back to her parental home madras and remained there. Venkatasubbiah filed the petition under section 9 of the Hindu Marriage Act, 1955 in the trial court .The trial court granted the decree in favour of the husband. On the appeal the A.P high court cancelled the relief granted by the trial court stating that the section 9 of the above Act violates the right to personal liberty and privacy by compelling her wife to have sexual intercourses against her will. Hence the petition filed by the husband under section 9 of the Hindu Marriage Act was dismissed.

The decision of A.P high court in Sareetha’s case was held invalid and the constitutional validity of section 9 was declared in the Delhi high court in the case of Harvinderkaur v.Harminder Singh[iv][AIR 1984 DEL . 66].The facts of this case is similar to the facts of sareetha case. The husband filed a petition under the section 9 of the Hindu marriage act, 1955 seeking for remedy restitution of conjugal rights. The wife (respondent) opposed the petition filed by her husband with decision of A.P high court in sareetha’s case. But the Delhi high court reversed the decision of the A.P high court and declared that section 9 of the Hindu Marriage Act, 1955 does not violate the article 21 of the Indian constitution,1950 and granted a decree in favour of the petitioner.

The conflict for the constitutional validity of section 9 of the Hindu Marriage Act, 1955 was finally resolved by the supreme court in the case of Saroj Rani v. Sudharshankumar[v][AIR 1984 SC 1562] the supreme court over ruled the decision of the A.P high court in Sareetha case and favouring the decision of Delhi high court and held that remedy under section 9 of this act is a protective key to preserve the marriage and clear the disputes which arise between the married couples. So section 9 of the Hindu Marriage Act, 1950 is not violative in nature.

CONCLUSION

The remedy for the restitution of conjugal rights preserves the concept of marriage and not causing any distruptions like divorce or judicial separation. But still there exist an inequality, where husband /wife are compelled to live together without their will. You can only take the cow near the water. But you cannot force that cow to drink that water. It is the recognition of marital right of the legally married couples. Restitution of conjugal rights creates an opportunity to reconstitute a married life which was started fading because of tiny misunderstandings.

By-BharathVaaj S

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