This article has been authored by Manshi Sinha, a second year student at VIPS, New Delhi.
In Hindu Law, marriage is considered as a sanskara or a sacrament. It is a union that imposes upon each of the spouses certain marital duties, gives some rights and casts an obligation on them to live together. The Hindu Marriage is regulated by The Hindu Marriage Act, 1955 (HMA).
From marriage, arises different set of rights and obligations, which constitute the very essence of the matrimonial union. Conjugal right refers to the right to stay together by virtue of entering into a marital bond with the partner.
Matrimonial disputes were very rare during the ancient time but with the passage of time, such disputes can be seen in every other household. It is often found that due to such disputes, spouses leave their matrimonial home and start living separately. In such cases, where one of the partners leaves the other without any reasonable cause, the aggrieved party can seek the remedy of Restitution of Conjugal Rights, provided under Section 9 of the HMA. It is meant to restore the conjugal rights if the reason behind deprivation of such right is found unreasonable by the Court.
The provision of restitution of conjugal rights, the essential elements for availing these rights, the procedure and the constitutional validity of the same has been discussed below in detail.
Section 9 of the Hindu Marriage Act, 1955
Section 9 of the HMA states “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the Court, on being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.”
The term restitution etymologically means restoration. Marriage is a bond of two persons and it is possible that both of them might not like each other’s behaviour. In such cases if one of the spouses starts living separately and withdraws from the society of the other, it is called “withdrawal from society”.
This provision helps to restore the marital union if any of the partner has withdrawn from the society without any reasonable excuse. If the aggrieved party files a petition in the District Court for restitution of conjugal rights and the court is satisfied with the contentions made by the petitioner, leaving behind no ground on which the petition could be dismissed, court may grant decree of restitution in favour of the aggrieved party. The explanation attached to the provision states that, the burden of giving an acceptable excuse would rest on the person withdrawing from the society.
Essentials of Section 9
The decree for restitution of conjugal rights is granted only when the following essential requirements are fulfilled:
1. The spouses must not be staying together at the time of filing the petition for restitution of conjugal rights.
2. The grounds on which the other party has withdrawn from the union must be unreasonable and unacceptable.
3. The petition for the restitution of conjugal rights must have been filed by the aggrieved party.
The matrimonial bar mentioned under Section 23(1)(a) of HMA clearly states that no one can be allowed to take advantage of his or her own wrong. So, the party filing petition for restitution of conjugal rights must be the aggrieved party and should not be at fault.
Petition for The Restitution of Conjugal Rights Can Be Declined On The Following Grounds:
1. If the petitioner admits having resorted to any other marital misconduct, such as having extramarital affairs, physical, or emotional abuse, hiding large amount of money, or debts from the other spouse etc., then the court may decline the decree for restitution of conjugal rights.
2. The petitioner’s behaviour makes it tough for the respondent to stay with him or her. If the petitioner does something that is against the moral code of conduct and makes it impossible for the respondent to stay with him or her, then such withdrawal of the respondent would not be unreasonable. For an instance, if the petitioner exercises cruelty on the respondent, then the respondent under such circumstance cannot be forced to live with the petitioner.
A landmark judgment on restitution of conjugal right is Kailashwati v. Ayodhia Prakash. In this case the wife was living away from her husband for her job. When the petition for restitution of conjugal rights was filed by the husband, the trial court decided in the favour of the husband and granted him the decree. After this, when the wife went for appeal in the Punjab-Haryana High Court, the court dismissed the appeal and held that wife is under an obligation to live together with the husband in their matrimonial home. The observation made by the High Court in this case was based on the statutes of the Hindu law and old customs, where the wife is under an obligation to live with her husband in his home and under his roof and protection. This view was conservative and it was dissented in the case of Swaraj Garg v. K.M. Garg. In this case, when the husband filed petition against the wife, for the decree of restitution of conjugal rights, the trial court refused the decree, but the same was granted by the single bench of Delhi High Court. However, when the matter came before the bench of Delhi High Court as a letter patent appeal, the court held that such old customs that cast an obligation on the wife to live with the husband under his roof, are not applicable in recent cases and there is no such codified provision in Hindu law. Considering these and other factors, the court declined the decree of restitution of conjugal rights to the husband
Constitutional Validity of Section 9
The constitutional validity of Section 9 of the HMA has been challenged in the Court many times.
The Andhra Pradesh High Court in the case of T.Sareetha v. Venkata Subbaiah held that Section 9 of the HMA is against the right to privacy of an individual guaranteed by the Constitution.
In this case, a petition for restitution of conjugal rights was filed by the husband against his wife. The court held that Section 9 of the HMA is unconstitutional because it takes away the privacy of wife by compelling her to live with her husband against her wish. It amounts to violation of the fundamental rights of freedom of movement and the right to live with dignity and guaranteed under the Indian Constitution and thus held it to be in contravention of Article 19 and Article 21 of the Constitution. Therefore, Section 9 of the HMA in this case was held to be unconstitutional.
However, the Delhi High Court in the case of Harvinder Kaur v. Harmander Singh Choudhary held that Section 9 of the HMA is constitutionally valid.
Ultimately, Supreme Court in Saroj Rani v. Sudarshan Kumar, gave judgment which was in line with the observation made by Delhi High Court in this regard. The court held the impugned section to be constitutionally valid and overruled the judgment given in the case of T.Sareetha. The court observed that Section 9 of the HMA is not violative of Article 14 and 21 of the Constitution. It observed that Hindu marriage is a sacrament and the object of Section 9 is to offer an inducement for the husband and wife to live together in harmony and is constitutionally valid.
Marriage is a sacrament and maintaining it is the responsibility of both, the husband and the wife. The decision where the matrimonial home should be is a decision which affects both the parties as well as the family. It is their duty to decide it by mutual agreement, by give and take, and not by the imposition of will of one over that of other. The remedy of restitution of conjugal rights can make the partners stay together but its effectiveness cannot be assured. This can be an attempt to save the marriage but at the same time can also strain the relation even more.