Restitution of conjugal rights
By: Robin Pandey Date: 21/February/2022
The expression “Restitution of conjugal rights” means to restore conjugal rights which were enjoyed by the parties previously. The text of Hindu law recognised the principle "let mutual fidelity continue until death" Hindu law enjoined on the spouses to have the society of each other. While the old Hindu law stressed on the wife's implicit obedience to her husband, it did not lay down any procedure for compelling her to return to her husband against her will. It became necessary to find some remedies and procedures so as to see the marriage tie intact and would not be disturbed by some petty quarrels between the spouses. As a measure of positive relief in the form of restitution of conjugal rights, Section 9 of the HMA grants statutory recognition to the right of the couple to have consortium of each other. Anyone spouse leaving the other without just cause and excuse would be proceeded against by the other in a court of law praying for a decree of restitution of conjugal rights. The concept of the existence of the court's power to give this relief was borrowed from English law. It must be noted here that this is the only positive relief under the Hindu Marriage Act while other remedies tend to weaken or disrupt marriage.
Section 9, HMA reads as under: "When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society."
Foundation of this Right: It is the well settled principle of law that the foundation of the right to bring a suit for restitution of conjugal rights is the fundamental right of matrimonial law that one spouse is entitled to the society and comfort of the other spouse and where either of the spouses has abandoned or withdrawn from the society of the other without reasonable excuse or just cause there should be a decree for restitution of conjugal rights.
Pre-requisites for grant of Restitution of Conjugal Rights
(1) The respondent has withdrawn from the society of the petitioner.
(2) The withdrawal by the respondent party is without a reasonable excuse.
(3) The court is satisfied that the statements made in the petition are true.
(4) There is no legal ground for refusing to grant application.
(A) Withdrawal from the Society: The expression, "society" used in this Section Should be understood as marital cohabitation that is to say that the husband cherishing and supporting his wife as a husband should do and a wife rendering duties as a housewife. Though they may not live under the same roof yet there would be cohabitation in the wider sense of the term if they fulfil the mutual duties to each other as husband and wife.
(B) Desertion and Withdrawal from the Society: In the case of judicial separation under Section 10 read with Section 13 "desertion" has to be proved. The word "desertion" is not used in Section 9. The quality of permanence is one of the essential elements which differentiate "desertion" from ""withdrawal from the society". Failure to render conjugal duties, refusal to stay together or of marital intercourse with the other spouse, would normally constitute withdrawal from the society of the other spouse.
(C) Petitioner must have bona fide Intention: The decree of divorce grantable under Section 13(1A)(ii) is a consequence of the decree of the restitution of conjugal rights. Where it finds that the mind of the petitioner is stuffed more with the idea of divorce than regaining comfort consortium then the court may refuse this relief. If the petitioner wants to use the decree as a stepping stone for divorce in the long run, the court may refuse to grant this decree because the object of the petitioner is not to restore living together. There must be a bona fide desire to resume cohabitation. Restitution will be refused where the petition is rot bona fide or filed with an ulterior motive or where it will be unjust to pass a decree.