Brief Introduction: Restitution of Conjugal Rights


Introduction

After the marriage the couple bound into some marital duties and law also grants them certain rights and obligations. These rights may be called as “conjugal rights”. First object of marriage is that the husband and wife will stay together.

A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. Decree of restitution of conjugal rights could be passed in case of valid marriages only.


What is meant by Conjugal Rights?

Conjugal rights originally mean the right to stay together. Restitution means restoring the situation after something has been taken from a person in an unlawful manner therefore the Restitution of conjugal rights means the restoration of cohabitation and conjugal relations between both the spouses i.e. the husband and wife by way of legal interference.

Therefore if after the marriage the spouse withdraws himself or herself from the other's society without any reasonable excuse, the other party has the legal right to move to the matrimonial court for the restoration of constitutional rights. The remedy available for restitution of conjugal rights is a compulsory renewal of cohabitation when the husband and wife are living separately due to any reason. The restitution of conjugal rights is often regarded as a matrimonial remedy.

The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit.


Restitution of Conjugal Rights 

When either the husband or the wife, without any reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District court/ Family Courts, for restitution of conjugal rights and the court, on being satisfied with the truth of the statements made in such petition and further agreed that there is no legal justification to reject the application, may decree restitution of conjugal rights application accordingly”.

In India, the provisions for restitution of conjugal rights are available in different caste and communities for Hindus under Section 9 of the Hindu Marriage Act, 1955, for Muslims under common law, for Christians under section 32 and 33 of the Indian Divorce Act, 1869, measures are available for Zoroastrians under section 36 of Parsi is. For married persons as per the provisions of the Special Marriage Act of the Marriage and Divorce Act, 1936 and Section 22 of the Special Marriage Act, 1954 measures are available for restitution of conjugal rights.

Firstly, A Legal Notice Under Section 9 of The Hindu Marriage Act can be sent, asks a spouse who has left the other without any reasonable excuse, to return.

If no reply to the legal notice under Section 9 HMA received, then the aggrieved party can approach the Court for restitution of conjugal rights. (Although the notice is not mandatory under the section and a petition can be filed directly in court.)

A petition under restitution of conjugal rights petition is filed under Section 9 of The Hindu Marriage Act, 1955. The law provides that when the spouse withdraws from the other's society, the agitated party can apply to the court in the direction that the other party should stay with him. Such a petition is to be filed before the District Judge (Family Courts).


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Condition before Filing Petition under Sec 9 of HMA

  • The spouses must not be living with each other.
  • The spouse deserted the other without any reasonable reason.

A petition for restitution of conjugal rights can be filed with a family courts/civil court that has jurisdiction over the area where1. The marriage was completed.

  • The husband and wife once used to stay together.
  • The wife currently stays.

If the court, after hearing the petition of the party, satisfied that there was no legal basis as to why the application would be rejected and satisfied the truth of the statements made in the petition and petitioner is desirous to bring the spouse back, the decision to restore constitutional rights can be passed (the burden of proving reasonable excuse shall be on the person who has withdrawn from society.) and If court seems that the petitioner is taking advantage of his own wrongdoing or the other party has a reasonable/good excuse or reason for deserting, the court can dismiss the petition. (reference: Section 23 of the Hindu Marriage Act). 

Section 9 is, in fact, a means of preserving marriage, in a sense an extension of sub-sections (2) and (3) of Section 23 of the Act which encourage reconciliation by the court and it is considered as the last chance to save the marriage before it breaks down finally.


Grounds of Rejection of Restitution of Conjugal Rights Petition

The petition for restitution of conjugal rights may be rejected by the said court due to any of the following reasons:

  1. Where the respondent can claim any matrimonial relief on that ground. For example, any ground with which the respondent can pray for a decree of judicial separation or nullity of marriage or can file divorce.
  2. A reasonable excuse for withdrawing from the society of the petitioner.
  3. where the spouse/partner filing the petition for restitution of conjugal rights has committed a matrimonial misconduct. Any conduct or fact on the part of applicant which tantamount to the conclusion that applicant or petitioner is taking advantage of his or her own wrong or any disability for the purpose of such relief under the law.
  4. Where the actions of the spouse filing the complaint make it impossible for the respondent to reside with them.
  5. Unnecessary or improper delay in instituting the proceeding.

Limitations

The Decree of Restitution of Conjugal Rights from Court obtained by one party becomes futile in the case where one of the partner/spouse is found to be impotent. 

The Decree of Restitution of Conjugal Rights cannot be executed by force. If the opposite party refused to stay with the person who institutes petition for Restitution of Conjugal Rights then no order can be passed.


Additional Feature

Section 9 of the Hindu Marriage Act (HMA) have provision for the restitution of the conjugal rights. The aggrieved party/any partner may apply, by petition to the family Court, for the restitution of conjugal rights. It can be a ground for divorce under Section 13(1A) of the Hindu Marriage Act ,1955 when there has been no restitution of conjugal rights between them for a period of 1 year or more after the passing of a decree or judgement for restitution of conjugal rights under section 9 of HMA.

Section 9 of the Hindu Marriage Act, 1955 also provide opportunity to aggrieved party to apply for maintenance under Section 25 of the Hindu Marriage Act, 1955 without filing any suit or petition under the Hindu Adoptions and Maintenance Act, 1956.


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