Published on: March 25, 2022 at 20:30 IST
Marriage is one of the most roller-coaster aspects of life. In other words, we see ups and downs in marriage. However, our society knows the Indian Marriage System for the wrong reasons.
Firstly, there’s the controversial case of Marital Rape. Then, there’s Domestic Violence and the outdated Dowry System that affects the physical and mental health of the victim. Thirdly, there’s the rising number of fake cases of the said Marital Crimes. Lastly, there’s the increasing number of Divorces which could break down the marriage permanently.
Putting that aside, we need to understand that Divorce is the most extreme form of ending the marriage. It means that once it happens, it’s the end of the marriage.
We all know about the famous divorces of the Bezos and the Gates. These divorce settlements are worth billions. It’s not something, the average Joe can do it easily.
Our laws understand the gravity of Divorce. This is why they prefer to do everything to save marriages legally. One such attempt is the concept of Restitution of Conjugal Rights. Section 9 of the Hindu Marriage Act explains this concept.
Restitution of Conjugal Rights 
Under Section 9 of the Hindu Marriage Act 1955:
Restitution of conjugal rights: When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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. [ Explanation. 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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
In other words, if either of the spouses has left without leaving any valid reason, then the party affected by the actions of the former may apply for restitution rights (Remedy under the restitution of conjugal rights).
The court will do everything in its power to save the marriage. If the spousal couple do not comply with the court order for two years under Section 9 of the Hindu Marriage Act 1955, then they can file for divorce under Section 13 of the said Act.
For example, the wife left the husband without any valid reason. Then the wife filed a complaint of domestic violence and maintenance from another city. So the husband filed the suit of the restitution of the conjugal rights under Section 9 of the Hindu Marriage Act 1955.
Elements of the Restitution of Conjugal Rights
- The marriage must have a validity.
- Either of the spouse should extract themselves from the society of another,
- Such action must exist without any understandable reason.
- Setting up of the truth of statement by the court which could no legal ground for refusing the decree.
Definition of Reasonable Excuse Under Section 9
- The party can get matrimonial relief on the ground.
- On matrimonial misconduct, but cannot form any ground of divorce under Section 13 of the said Act. Regardless, if the miscoduct is grave, it could be considered as one of the grounds for a reasonable excuse.
- If the party is guilty for any misconduct which could make living with the other party untenable.
- Sushila Bai vs Prem Narayan Rai: The court allowed the restitution to the wife when her husband left her in her father’s home and has not made any contact wither since then. Thus the move by husband is considered as withdrawing from society.
- Gaya vs Bhagwati: The Madhya Pradesh High Court observed that the wife can’t take any decision on her own, while at the same time, must perform matrimonial responsibility in her husband’s house.
- Shanti Devi vs Ramesh Chandra: Under the Allahabad High Court, if the wife abandons the husband’s company because of the problems in the employment then the withrawal is valid and thus it comes under the umbrella of reasonable excuse. Thus there is no need for decree of restitution.
Grounds of Dismissal
If there is no truth in the statements and the court finds out about it then it can dismiss the petition. If the court believes that the spouse has a resonable excuse to leave society then the petition will be dismissed by the court.
Under Section 23 of the Hindu Marriage Act 1955, if the court believes that the spouse’s own conduct can debar the other’s seeking of the relief or if they believe that the former is taking advantage of their own wrong then the petition will be dismissed by the court. In a nutshell, the court must believe that the spouse must have bona fide intentions to save their marriage.
Constitutional Validity of Section 9
The argument was made on the constitutional validity of Section 9 of the Hindu Marriage Act 1955. It was said that the section 9 of the said act violates the fundamental right i.e. right to life and personal liberty 9 (and dignity) under Article 21 of the Indian Constitution.
The Andhra Pradesh High Court has the same sentiments, they believe if the wife is compelled to live with her husband then it can infringe on Right to Privacy.
The court observes that-
“The remedy of Restitution offends the inviolability of the body and mind and invades the Marital Privacy and Domestic Intimacies of such person.”
Saroj Rani vs Sudarshan Kumar Chandra
It was the Supreme Court that finally resolved the issue of Section 9 of the said act and the fundamental rights.
The Supreme Court took the precedent of Delhi High Court in Harvinder Kaur vs Harvinder Singh and observed that the decree’s objective is to attract the spouses to live together and not forcefully engange with sexual intercourse.
The restitution is a remedy that aims to protect marriage. Henceforth it does not biolate Articles 14, 19, and 21 of the Indian Constitution. The court expressed in a nutshell that sexual intercouse must not be enforced. Rather, the marital togetherness must exists between husband and wife.
“Consortium in law means “the right of association and companionship with one’s husband or wife.”
The Restitution of Conjugal Rights was mentioned in the Bollywood movie “Thappad”. It’s a movie where the married couple were at odds against each other just because the husband slapped the wife for the first time.
In retaliation, the wife left him and it spiralled a cold war between them and the laws aren’t serving as the détente. An article by The Wire makes a commentary about the laws and women.
According to the said article, the Restitution of the Conjugal Rights weren’t only flagged but it makes the marital laws in India more inadequate.
A mainstream movie critiquing the marital laws highlight the current marital problems that exist in India. The laws in general are progressive. They not only try to improve the lives of women, but they try to save the marriage by using all their means.
However, the laws are just rules written on paper and in pratical, they are often ignored by the majority of people despite of their education qualification. Not a lot of people have legal education.
Divorce is probably the most draining and most tragic part, a person should go through regardless of the gender unless if there’s any crime involved.
In any case, our courts should do everything in their power to help repair the marriage if not completely save it. That’s why the Hindu Marriage Act 1955 has Judicial Seperation under Section 10 and Restitution of the Conjugal Rights under Section 9.
- 6. Kanoon I. Section 9 in The Hindu Marriage Act, 1955 [Internet]. Indiankanoon.org. 2022 [cited 14 March 2022]. Available from: https://indiankanoon.org/doc/322349/ ↑
- 5. Law W. What Is Restitution of Conjugal Rights: Section 9 of Hindu Marriage Act [Internet]. WritingLaw. 2022 [cited 14 March 2022]. Available from: https://www.writinglaw.com/restitution-of-conjugal-rights/ ↑
- 7. Kanoon I. Smt. Sushila Bai vs Prem Narayan Rai on 14 March, 1985 [Internet]. Indiankanoon.org. 2022 [cited 14 March 2022]. Available from: https://indiankanoon.org/doc/1312783/ ↑
- 8. Kanoon I. Gaya Prasad vs Mst. Bhagwati on 26 August, 1965 [Internet]. Indiankanoon.org. 2022 [cited 14 March 2022]. Available from: https://indiankanoon.org/doc/88148/ ↑
- 9. Kanoon I. Shanti Devi vs Ramesh Chandra Roukar And Ors. on 15 September, 1967 [Internet]. Indiankanoon.org. 2022 [cited 14 March 2022]. Available from: https://indiankanoon.org/doc/1617889/ ↑
- 4. Restitution of Conjugal Rights in India [Internet]. Legalservicesindia.com. 2022 [cited 14 March 2022]. Available from: http://www.legalservicesindia.com/divorce/restitution-conjugal-rights.htm ↑
- 10. Kanoon I. T. Sareetha vs T. Venkata Subbaiah on 1 July, 1983 [Internet]. Indiankanoon.org. 2022 [cited 14 March 2022]. Available from: https://indiankanoon.org/doc/1987982/ ↑
- 11. Kanoon I. Smt. Saroj Rani vs Sudarshan Kumar Chadha on 8 August, 1984 [Internet]. Indiankanoon.org. 2022 [cited 14 March 2022]. Available from: https://indiankanoon.org/doc/1382895/ ↑
- 12. Malaviya D. ‘Thappad’ and How the Law Disappoints Married Indian Women [Internet]. The Wire. 2022 [cited 14 March 2022]. Available from: https://thewire.in/film/thappad-film-marriage-patriarchy ↑
Edited by: Tanvee Jain, Publisher, Law Insider
Credentials: My name is Anish Bachchan and I’m a 5th Year Law Student at Amity Law School, Nodia. I have published my various writings on The Los Angeles Times, The Times of India, Live Wire, Youth Ki Awaaz, Legal Service India, and Law Corner. I have also published two books i.e.
1. Patent 101 Level 1: Understanding Patent of Aggressive Monetization of Video Games
2. Contempt of Court with References to Media Trials.
Also Read: Constitutional Validity of Conjugal Rights