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Dr.RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

Subject – Family Law

FINAL DRAFT

“Restitution of Conjugal Rights”

SUBMITTED BY:

Neelesh Ramchandani

4th Semester

Roll No-81, Section-B

UNDER THE GUIDANCE OF

Mr. Mahendra Singh Paswan

Asstt. Prof. in Law

Dr. RMLNLU, LUCKNOW

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ACKNOWLEDGEMENT

I would like to take this opportunity to thank Mr. Mahendra Singh Paswan without whose
valuable support and guidance, this project would have been impossible. His excellent teaching
guidance and steadfast support has been invaluable and ensured the completion of this project.

Of course I never would have been able to conduct this study or write this final draft of my
project without the assistance provided by the library staff and would also like to thank the
library staff for having put up with my persistent queries and having helped me out with the
voluminous materials needed for this project.

Furthermore, I would also like to thank and show my deepest appreciation towards my seniors
for having guided me and culminate this acknowledgement by thanking my friends for having
kept the flame of competition burning, which spurred me on through the days and I am also
indebted to my various batch-mates, all of whom took on extra responsibilities to allow me the
time needed to document my findings and share them here, to whom I owe a special thanks.

-Neelesh Ramchandani

Semester IV

Roll no. 81 (sec B)

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INTRODUCTION
The remedy of restitution of conjugal rights was neither recognized by the Dharmashatra nor did
the Muslim law made any provisions for it. It came with the Raj. It is remarkable that this was
the only matrimonial remedy which was made available by the British rulers of India to all India
communities under the general law.

Husband and wife have both a right and duty to the society – comfort consortium of each other.1
It is inherent in the very institution of marriage itself. This is the unique feature of conjugal
relationship. It was held in the case of Chhotto v Teja Singh2 that the party who himself or
herself forsakes his or her spouse cannot ask for relief of restitution of conjugal rights. The right
course opens to such party is to go and live with the other party.

Under Section 9 of the Hindu Marriage Act 1955 (hereafter referred to as the Act), a court is
empowered to grant a decree for restitution of conjugal rights between a married couples. The
foundation of this relief of restitution of conjugal rights is the fundamental rule of matrimony
that a wife or husband is entitled to the society and comfort of her or his spouse – consortium -
where either of them has withdrawn from the society of the other without reasonable excuse of
just cause3. The existence of a valid marriage is an essential requisite of such relief; such
withdrawal from the society must be without the consent of the parties and goes beyond physical
withdrawal; the expression ‘reasonable excuse’ has not been defined by this Act but must fall
short of matrimonial offences as being ‘grave and weighty’.

This is the only positive relief under the Hindu Marriage Act aiming at affirming and preserving
marriage. Other remedies i.e., those of judicial separation, nullity of marriage and divorce tend to
weaken or disrupt marriage. This remedy helps restore the missing links.4 It yields a fresh
opportunity to the parties to make another attempt to live together.

1
Ela Dasu v Ela L achamma (1900) 2 HLR 249 (Ori.)
2
1987 HLR 250 (P&H)
3
Mulla, Hindu Law, vol.2 20th ed. (2007), p.63.
4
B.R Sayalv Ram Sayal AIR 1968 P&H 489
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BACKGROUND OF THE REMEDY OF THE RESTITUTION OF

CONJUGAL RIGHTS
Manu states “neither by sale not by repudiation is a wife released from her husband… such we
know the law to be, which the lord of creatures made of old. To be mothers were woman created,
and to be fathers men”. It is also stated that the duties of the wife are to be present with the
husband and perform her marital obligations at the husband’s residence.5 Similarly the duties of
the husband towards the care and protection of the wife, towards her safety and comfort and
towards a happy life to her have also been unequivocally articulated. The relief of ‘restitution of
conjugal rights’ seeks to provide recourse in the law to promote family wellbeing as stated in the
ancient edicts and scriptures. Such edicts mention the duties of the husband and the wife and the
relief in the form of restitution of conjugal rights tries to preserve the family and prevent its
breakdown due to minor issues.
Such relief has been granted to parties in India in the case of all communities even in the absence
of legislation. The concept of the court’s power to grant such relief has been borrowed from
English Law where statutes gave jurisdiction to the King’s Courts (which in turn directed other
courts) to determine causes as far as possible on the principles of ecclesiastical law. Such
legislation was not altered and courts were bound by precedent to follow such law. The history
of the relief in India therefore lies in precedent laid by English Courts that heard matrimonial
causes. The case of Monshe Buzlur Ruheem6 clearly marks the advent of such relief and the
current law in India relating to restitution of conjugal rights is the same as propounded therein.

Lord Herschell in the same case noted the barbarity of this remedy; The British Law
Commission presided by Mr. Justice Scarman in its report on 09-07-1969 recommended
abolition of this remedy in English law which lead to Section20 of the ‘Matrimonial Proceedings
and Property Act, 1970’ which abolished the right to claim restitution of conjugal rights in
English Courts.7 Such law did not however, bind the Indian Court where granting such relief had
already become a well established remedy. It also needs to be pointed out that while ancient

5
Gaya Prasad v. Bhawati AIR 1966 MP 212 (JB): 1965 Jab LJ 1092: 1965 MPLJ 948
6
(1867) 11 MIA 551
7
Section 20, Matrimonial Proceedings and Property Act, 1970:
“No person shall after the commencement of this Act be entitled to petition the High Court or any other Court for
restitution of conjugal rightSection”
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Hindu Law prescribed as the duty of the wife to abide by her husband, it did not mention any
sanctions; such edicts only mention the obligation of the wife to her husband and was incapable
of being enforced against her will. Therefore while our scriptures have only advised upon the
duties of the husband and wife, owing to the ecclesiastic origins of the relief that governed the
Courts of England, such remedy now has the force of law8 and is backed by sanctions.9 This
point has been the crux of the argument in suits against the constitutionality of Section 9 of the
Act.

BRIEF REVIEW OF SECTION 9 OF THE HINDU MARRIAGE ACT, 1955

For a decree for restitution of conjugal rights, three conditions must be satisfied:
(i) the respondent should have withdrawn from the society of the petitioner without
reasonable excuse,
(ii) the court should be satisfied about the veracity of the statements made in such a
petition, and
(iii) there should be no legal ground why such relief must not be granted to the petitioner.

The primary purpose of the relief by way of ‘restitution of conjugal rights’ is to preserve the
sanctity of a marriage; it is also to prevent an unnecessary breakdown of a family unit. The
practical importance of the relief is however two pronged. First that it enables the aggrieved
spouse to apply to the court for maintenance under Section 2510; maintenance ‘pendente lite’
may also be claimed by making out a case for the same as provided in Section 24 of the Act.
Secondly, and more importantly, this relief by way of restitution of conjugal rights affords a
ground for divorce to either party under Section 13 (1A) which lays down that either party to a
marriage, whether solemnized before or after the commencement of the Act, may obtain a decree
of divorce on the ground that there has been no restitution of conjugal rights between them for a
period of one year or upwards after the passing of a decree for restitution of conjugal rights in a
proceeding to which they were parties.

8
Section 9 of the Act provides for legal backing for the remedy of ‘Restitution of Conjugal Rights’.
9
Order 21 Rules 32 and 33 of the C.P.C provide for enforcement of such decree by compensation or attachment of
property to compensate the decree holder upon non‐performance of the decree by the other party.
10
While Section 25 provides for grounds for permanent alimony and maintenance, Section 24 provides for support
of a party and expenses of the proceedings to the party who it finds has no independent income sufficient for his
or her support.
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To analyze where such decree may not be passed, this section must be read with Section 23 of
the Act which imposes upon the court the duty to inquire into and pass such decree only after
satisfying itself about certain matters. Section 23 lays down grounds for refusal of grant of relief.
A bona fide desire to resume cohabitation and render faithfully ones matrimonial rights and
duties and the sincerity of the petitioner; an absence of reasonable excuse on the part of the
respondent and the absence of any matrimonial offence are the prerequisites of the grant of such
relief.
As regards the withdrawal from one’s society, the initial burden of proof that the respondent has
withdrawn from the society of the petitioner is on the petitioner. Once such burden is discharged,
it is for the respondent to prove that there exists reasonable excuse for the withdrawal.
The nature of reasonable excuse has not been defined under the Act and it is to be decided by the
court on the merits of the facts of each individual case which are governed by its singular
peculiarities; such excuse will vary with time and circumstances. ‘Reasonable excuse’ cannot be
equated with matrimonial offences nor can it be said that reasonable excuse cannot exist except
in the form of a ground recognized by this Act. Such excuse may be equated with the grounds
mentioned in sub-clauses (a) to (g) of Section 18(2) of the ‘Hindu Adoptions and Maintenance
Act, 1956’ where in a wife may live separately from her husband without forfeiting her claim to
maintenance. The second provision to Section 125(3), Cr.P.C. of 1973 uses the expression “‘just
ground’ for refusing to live with the husband”. The circumstances characterized by such section
may also constitute ‘reasonable excuse’ under Section9 of the Act.

CONDITIONS REQUIRED TO FILE FOR RESTITUTION OF CONJUGAL

RIGHTS
The aggrieved party may apply to the district court by way of petition for restitution of conjugal
rights.
The person seeking restitution must establish that:
(i) the respondent should have withdrawn from the society of the petitioner without
reasonable excuse,
(ii) the court should be satisfied about the veracity of the statements made in such a
petition, and
(iii) there should be no legal ground why such relief must not be granted to the petitioner.
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The burden of proof lies on the person who has withdrawn from the society of his/her spouse to
prove that he/she had reasonable cause to withdraw from the society of his/her spouse.

The person who has withdrawn from the society of his/her spouse may prove that it has become
impossible to live with the spouse. Persistent demand for dowry or causing physical and mental
torture was held to be a reasonable cause for the wife to withdraw from the society of the
husband in Vijay Kumar v. Suman.11

i. The respondent should have withdrawn from the society of the petitioner without
reasonable excuse.
Ordinarily it means leaving the place of the applicant by the respondent to live at some other
place. But withdrawal may be in more subtle or abstract way like refusal to give comfort
consortium or discharge matrimonial obligations of a husband or wife. This may be done even
while living in the same house. Actually, it is the social boycott of the applicant.

Withdrawal by the respondent takes place when the respondent does it voluntarily. Cases where
the husband turned his wife out of the matrimonial home and the reason may be that she did not
bring sufficient dowry or did not give birth to a male child or was barren will not be the
withdrawal by wife from the husband’s society; indeed, it is the husband who has withdrawn
from the society of his wife.
When husband throws out or leaves his wife who is even guilty of a matrimonial offence, it
cannot be said that she had withdrawn from the husband’s society because husband leaves her.

The Hindu Marriage Act does not describe “reasonable excuse”. It has been observed by
Ganesan, J. that it cannot be reduced to a formula and would vary with time and circumstances in
each individual case. For that we have to see the conditions of the present day society and not
those of Manu and other Smriti writers or the legendary Arunddhis in the case of Kanna v
Krishnaswami.12

11
(1996) 1 HLR 24 (P&H)
12
AIR 1972 Mad 247
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In Sandhu Singh v Jagdish13 the Punjab and Haryana HC observed that the reasonable excuse is
something less than justification and something more than a mere whim, a fad or brainware. It is
a personal matter depending upon the likes and dislikes, grievances and sympathies etc. of each
person. Hence, “reasonable excuse” cannot be formulated in a strait jacket yardstick. But it is an
objective matter and not subjective one.
After the Marriage Laws (Amendment) Act, 1976, in a proceeding for the restitution of conjugal
rights, the respondent may not only oppose the petition on the ground of the petitioner’s
matrimonial offence but also may make a counter- claim for a suitable relief under the Hindu
Marriage Act.
In Satyanarayan v Veeramani14, the husband filed a petition for the restitution of conjugal
rights. The wife pleaded in her defence that the husband was guilty of deserting her. She did not
make a counter- claim for judicial separation on the ground of the husband’s desertion. It was
contended that as she did not make counter- claim, she could not resist the husband’s petition.
Held, that the fact that she did not lodge a counter- claim per se does not disable her from
pressing the plea of desertion in her defence.
In several cases the court held that there was a reasonable excuse for the respondent to withdraw
from the society of the petitioner and for that reason restitution was refused. Some of the
circumstances are as follows –
 Marriage was not solemnized in accordance with the customary rites and ceremonies as
provided under Section 7 of HMA, 1955 and therefore there was no marriage between the
parties in the eye of law.15
 The parties have obtained divorce under the customary law of their community.16
 The marriage is annulled under Section 12 of HMA, 1955.17
 The petitioner is impotent towards the respondent.18
 The petitioner has another wife living, the second marriage might have taken place before
HMA or after it.19

13
AIR 1967 Punj. 139
14
AIR 1981 AP 123
15
Inder Yash v Manjit Kaur , 1980 HLR 251 (P&H)
16
Gita v Bheru Lal, 1984 HLR 219
17
Sharda Devi v Balvinder Singh, (2004) 1 HLR 52 (P&H)
18
Sirajmohmedkhan v Hafizunnisa, (1981) 4 SCC 250
19
Savitri Devi v Suryabhan Sharma, (1922) 2 HLR 10 (MP)
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It is submitted that if a person is a grave economic offender or is dangerous criminal; or is

habitually negligent towards his official duties, or briefly, is an unworthy citizen, it may also be a
reasonable excuse for leaving his or her society.

ii. The court should be satisfied about the veracity of the statements made in such a
petition.
The other condition for the restitution of conjugal rights is that the court must be satisfied that
the statements given in the petition are true. In Bejoy Daw v Aloka Daw20 the fact was that the
husband himself took his wife to her mother’s place for confinement. This does not amount to
withdrawal from the matrimonial home on her part. But he averred in the petition that she
withdrew from his society without reasonable excuse. The court held that as the petitioner
suppressed the truth, his petition would not be granted.

iii. There should be no legal ground why such relief must not be granted to the petitioner.
This means that there should be a good reason in law for justification of the relief which
petitioner is seeking for meaning thereby there must not be any legal ground for which the
petition may be rejected. This Act itself bars the grant of relief if the petitioner intends to take the
advantage of his/her own wrong or disability, or when there is collusion between the parties or
where there is undue delay in instituting the proceedings.
In Anandi Devi v Raja Ram21, the petitioner withdrew his first petition for the restitution of
conjugal rights without the permission of the court under Order 23 Rule 1(3) of the CPC. The
court held that it bars a second petition under Section 9 of HMA on the same cause of action.

BURDEN OF PROOF
The explanation to Section 9 of Hindu Marriage Act clears the question that who has to prove the
reasonableness of the excuse for withdrawal of a spouse from the society of other and answer to
this question is that initial burden to prove that the respondent has withdrawn from the society of

20
AIR 1969 Cal 477
21
AIR 1973 Raj. 94
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the petitioner is on the petitioner, and once that burden is discharged, it is for the respondent to
prove that there is a reasonable excuse to do so.22
The Law Commission of India recommended in its 59th Report that by suitable amendment to
Section 9 of HMA, the burden of proving the reasonable excuse should be rested on the
withdrawing spouse. This amendment brought about by Parliament in 1976 has not only resolved
the controversy but also made the law rational.

CONSTITUTIONALITY OF SECTION 9 OF HMA

The constitutional validity of the restitution of conjugal rights was challenged before the Andhra
Pradesh High Court in T. Sareetha v T. Venkatasubbaiah23, it was held by P.A Choudhary, J.
that the remedy of restitution of conjugal rights violates the wife’s fundamental right to equality
guaranteed by Article 14 of the Indian Constitution. It is tilted towards husband and it lacks
rationality, as it serves no public purpose.
It also violates her fundamental right to personal liberty secured by Article 21 of Constitution,
because it compels an unwilling wife to subject herself to marital intercourse with a man who
happens to be her husband. Such forced sex is rakshasa rati mental torture to her, degrading to
her dignity and monstrous to her spirit. Therefore the remedy is savage, barbarous, and
uncivilized. It is an engine of oppression in the hands of husband.
In Havinder Kaur v Harmander Singh24, A.B Rohtagi, J. of Delhi HC strongly dissented the
decision of the above case and held, “It is to take the grossest view of the remedy to say that it
subjects a person by the long arm of the law to a positive sex act.”
The Supreme Court has supported the view of the Delhi High Court. Sabyasachi Mukharji, J
held in Saroj Rani v Sudarshan Kumar Chadha,25 that the remedy is not tyrannical.”There are
sufficient safeguards in Section 9 to prevent it from being a tyranny.”

22
Atma Ram v Narbada , AIR 1980 Raj. 35
23
AIR 1983 AP 356
24
AIR 1984 Del 66
25
(1984) 4 SCC 90
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ABOLITIONIST'S VIEW
The abolitionists argue that it is a remedy that was unknown to Hindu law till the British
introduced it in the name of social reforms. Even when the Hindu Marriage Act, 1955 was being
passed in the Parliament, there were voices of skepticism regarding the efficacy of this remedy.
Sir J. Hannen in Russell v. Russell26 also vehemently opposed the remedy. Further, they are of
the view any law that forces any person to live with another person is contrary to the value of the
society. The remedy openly violates the fundamental right to life, privacy and equality hence is
unconstitutional. Furthermore, there is frequently insincerity in the petitioner's intention. The
remedy is blatantly misused to achieve ulterior purposes other than reconciliation, the root cause
being S.13 (1-A) (ii) of the Hindu Marriage Act, 1955 and has created an additional ground of
divorce. Yet another major problem with restitution petitions is that it is used as a defence for
maintenance suits. This remedy has been repeatedly misused, abused and exploited.

Adding more, the procedure prescribed to enforce this decree under Order 21 Rule 32 of Civil
Procedure Code, 1908 is also criticized on the ground that in India, where most of the population
and especially women (wife) do not have actual possession over any property. In such cases, if a
restitution decree is not complied with, then the court is required to ascertain the share of the
wife in the property of her husband, when it is not divided and arrive at her share in the property,
but this involves cumbersome procedures. Difficulty also arises if the husband does not have a
property in his name. Further, it is not correct to think that coercing a person that his property
would be attached and sold away can change the attitude of the adamant spouse and make him
obey the decree.

COUNTER VIEW

However, the counter opinion is that the Section 9 of the Hindu Marriage Act is one of the most
misunderstood sections of the Matrimonial law. Despite the controversy it has continuously been
upheld by the Judiciary. Even the legislature through various committees and its reports has
supported this section. All the reasons so stated by abolitionists can be easily encountered if this
socially benefiting section is read in the right light and its essence is understood. It is imperative
that a clear understanding of the section 9 is required because it is often invoked.
26
(1897) AC 395.
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First of all, it cannot be said that the concept of conjugal rights and that its embodiment in
section 9 is foreign to the Indian culture and society. It may be borne in mind that conjugal
rights. Such a right is inherent in the very institution of marriage itself. The only thing is new is
the embodiment of this concept which has been prevailing since antiquity.

The prime objective of section 9 is to preserve the marriage. According to the Hindu Marriage
Act marriage is a civil contract and a religious ceremony. It is a contract of the greatest
importance in civil institutions, and it is charged with a vast variety of rights and obligation,
cohabitation being one of them. It is the very soul of marriage and this section enforces the right
of cohabitation. If there is no reasonable ground for living apart, the court orders for cohabitation
and enforces the Contract there is nothing wrong as the parties had voluntarily stipulated this at
the time of entering into the marriage bond.

Further, it is criticized on the ground that it allows the withdrawing spouse to take an advantage
of his own wrong, which is against the scheme of section 23 and allows him/her to apply for a
decree in case of non consummation of the marriage within one year of passing of decree.
However in Dharmendra Kumar v. Usha Kumari,27 the Hon'ble Court clearly stated that The
expression "in order to be a within the meaning of section 23(1) (a) the conduct alleged has to be
something more than mere disinclination to agree to an offer of reunion, it must be misconduct
serious enough to justify denial of the relief to which the husband or the wife is otherwise
entitled to.

CASES
Tirath Kaur v Kirpal Singh28
The question whether the wife’s refusal to give up her job at the instance of the husband amounts
to withdrawal from his society first came up in this case, which was a husband’s petition for
restitution of conjugal rights on the averments that his wife had left the matrimonial home to a
distant place and taken up a job there and, despite his repeated requests to resign job and rejoin
him in the matrimonial home, she had not cared to do so.

27
AIR. 1977 S.C. 2218.
28
AIR 1964 Punj 28
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The court held, “A wife’s first duty to her husband is sumbit herself obediently to his authority,
and to remain under his roof and protection…”

Kailash Wati v Ayodhia Parkash29

In this case Full Bench of Punjab & Haryana HC hold the wife’s refusal to resign her job
amounts to withdrawak from husband’s society, project this as a typical Hindu theme and make
much of special obligation of the Hindu wife to live under the roof and protection of the
husband.

V Mala Vishwanathan v P.B Vishwanathan30

In this case the question raised was that if a spouse does not like company of the other, can the
former ask for an injunction to restrain the latter from entering the matrimonial home.
A division Bench of Calcutta HC held that the court must be very careful in granting such
injunction against spouse. Such an injunction involves the breaking up of the matrimonial home.
The court has a duty unto society to preserve marriage as it involves the peace of family and
organization of society. Therefore such an injunction can be granted only in exceptional
circumstances supported by strong reasons.

CONCLUSION/ FINDINGS
The concept of restitution of conjugal rights was a British ecclesiastical concept and was added
to the Indian personal laws by judicial interpretation of British judges. It was later codified in
various statutes except the Muslim personal laws.
The conditions to be fulfilled before a decree for restitution of conjugal rights can be granted are:
(i) the respondent should have withdrawn from the society of the petitioner without
reasonable excuse,
(ii) the court should be satisfied about the veracity of the statements made in such a
petition, and
(iii) there should be no legal ground why such relief must not be granted to the petitioner.

29
ILR (1977) 1 P&H 642
30
(2002) 2 HLR 654 (Cal DB)
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In summation, it may be stated that the Remedy of Restitution of Conjugal Rights is not archaic,
barbarous and violative of the basic Human Rights. It cannot be said that this remedy is
unconstitutional. Section 9 has sufficient safeguards to prevent the marriage from being a
tyranny. In truth, it serves the social good purpose, by promoting reconciliation between the
parties and maintenance of matrimonial. It protects the society from denigrating. And all the
years that it has been enforce it has efficiently played it's a role.
 This remedy of restitution of conjugal rights purports to preserve marriage , rebuild a
broken home and re- establish the “two in one” relation between the estranged spouses.
 Section 9, in actuality, is a means of saving the marriage, it is in a sense an extension of
sub-sections (2) and (3) of section 23 of the Act which encourage reconciliation by the
court. It is the policy of the Act that the parties should live together and assist in the
maintenance of marriages. By enforcing cohabitation, the court is serving this purpose of
the Act.
 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 conjugal rights 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
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BIBLIOGRAHY
 Law of Marriage and divorce – Paras Diwan
 www.advocatekhoj.com/.../restitution.php?...Restitution%20of%20Conju..
 https://www.kaanoon.com/.../restitution-of-conjugal-rights-in-hindu-mar...
 www.lawreform.ie/_fileupload/reports/rjactitation.htm
 www.legalserviceindia.com/articles/abol.htm
 www.webindia123.com/law/family.../restitution_of_conjugal_rights.htm