What is Restitution of Conjugal Rights? Explain the Constitutional validity of Restitution of Conjugal Rights? [ A.P.H.C. 2009]

Restitution of conjugal rights is a relief available to spouses under the Hindu Marriage Act, 1955.

After marriage, the husband is entitled to the society of his wife and the wife to the society of her husband. The foundation of the right is the fundamental rule of matrimonial law that one spouse is entitled to society and comfort-consortium-of the other spouse.

Section 9 of the Hindu Marriage Act, 1955, deals with the subject of the restitution of conjugal rights. Restitution of conjugal rights is defined as the compelling of a husband or wife, who has withdrawn and lives separate without cause, to live with the other. The aggrieved party can file a petition for restitution of conjugal rights in the District Court. The idea of providing for restitution by a court decree is to preserve the marriage tie as far as possible, by enabling the court to intervene and enjoin upon the withdrawing party to join the other.

The conditions to be satisfied for obtaining such a decree are:

1) The other spouse has withdrawn from the society of the petitioner.

2) There is no reasonable excuse for such withdrawal. Should the respondent allege reasonable excuse, the burden of proof lies on him/her.

3) The court's satisfaction as to the truth of the statements made in the petition.

4) No legal grounds exist for refusing the decree.

In Gaya Prasad vs. Bhagwati (Employment case), the Madhya Pradesh High Court has held that if a wife accepts any employment without husband's consent at a place different from husband's home and refuses to live with him it can be said she has withdrawn from husband's society without reasonable cause.

In Saroj Rani vs. Sudarshan Kumar, AIR 1984 SC 1562, the Hon'ble Supreme Court has held that this section is not violative of Articles 14 (Right to Equality) and 21 (Right to Liberty) of the Constitution dissenting with the decision of Andhra Pradesh High Court and overruling it in the case of T. Sareeta vs. T. Venkata Subbaiah and favoured the decision of Delhi High Court in the case of Harvinder Kour vs. Harmandar Singh.

In Jagadish Lal vs. Shyama (Impotency case), the husband filed a suit of restitution of conjugal rights. The wife took the defence of impotency of the husband at the time of marriage. Though it was not proved that he continued to be impotent till the presentation of the petition, the court took it as reasonable excuse for withdrawing from the society.

In Ranjana Kejriwal vs. Vinod Kumar Kejriwal, the wife in her own petition for restitution herself alleged that the husband had suppressed his earlier marriage which was subsisting. In these circumstances, the Court held that the petitioner’s marriage being illegal, her application for restitution of conjugal rights was not maintainable.

Constitutional Validity of Section 9 of Hindu Marriage Act:-

In T. Sareeta vs. T. Venkata Subbaiah, the question arises whether S. 9 of Hindu Marriage Act, 1955 is violative of Articles 14 and 21 of the Constitution.

The discussion of the case came before Andhra Pradesh High Court where the husband filed a petition for restitution of conjugal rights against wife who was a famous film actress, Sareeta. Here, she argued that the right to liberty which includes right to privacy confers on women a right to freedom of choice. This freedom of choice being a part of the right to privacy is guaranteed under Article 21 of the Constitution.

The learned Judge accepted the argument and held that according to Article 14 of the Constitution both men and women have to be treated equally even after marriage and stuck down S. 9 of Hindu Marriage Act by opining that it violates wife's right to privacy and accordingly dismissed the petition filed by the husband.

However, the decision of Andhra Pradesh High Court was dissented and S. 9 of the Hindu Marriage Act was upheld by Delhi High Court in the case of Harvinder Kour vs. Harmandar Singh. In the Delhi case, the husband filed a petition against wife for restitution of conjugal rights. The wife opposed the petition by taking support of the decision of Andhra Pradesh High Court in Sareeta's case. But, the Delhi High Court upheld the Constitutionality of S. 9 and granted a decree of restitution of conjugal rights.

Finally, the Constitutionality of S. 9 of HMA, 1955was put to rest in the case of Saroj Rani vs. Sudarshan Kumar, by the Apex Court. In this case, the Hon'ble Supreme Court upheld the constitutional validity of S. 9 of the Hindu Marriage Act by favouring the decision of the Delhi High Court and overruling the decision of Andhra Pradesh High Court by opining that the term “conjugal rights”may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression “conjugal”.

Thus, as can be seen from the above discussion, every effort is made by the Court to preserve the institution of marriage. If the decree in a suit for restitution of conjugal rights is disobeyed by not resuming cohabitation, then parties have reached a stage of no return and in such a case the parties get a ground for divorce after a lapse of one year under Section 13(1A)(ii) of the Act.