Hindu Law is the supporter of the notion that upon marriage the husband and the wife become one. Marriage is a sacred and holy institution which has been accepted and mentioned in the personal laws of any/all the religions of the world. The fall out of the doctrine of the unity of personality, which is a common law doctrine, was that one spouse cannot sue the other spouse. With the passage of time, complexity increased particularly in the areas such as divorce, judicial separation, and conjugal rights. A need to codify the laws relating to marriage in India was observed.

In conclusion, the outcome was that the only remedy that a deserted spouse had was to file a petition for restitution of conjugal rights. The restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and peacefully cohabit.

Marriage under all matrimonial laws imposes certain marital duties and bestows upon each of them some legal rights. A necessary implication of marriage is that parties getting married must live together. In other words, each spouse is entitled to the comfort of the other.

Meaning of Restitution of Conjugal Rights

Restitution of Conjugal Rights comprises of two major words, which are Restitution and Conjugal Rights.

RESTITUTION means the restoration of something which has been lost.

CONJUGAL RIGHTS means the rights which are related to marriage between a husband and a wife. 

If either party to a holy institution of marriage withdraws from the society of the other spouse without a reasonable cause, the aggrieved party has a right to file a petition claiming relief for restitution of conjugal right. The court will grant the relief if there is no legal bar to such decree.

The definition for restitution of conjugal rights is given under Section 9 of the Hindu Marriage Act, 1955. The thought of providing for restitution by a court decree is to preserve the marital tie as far as possible, it enables the court to intervene and enjoin upon the withdrawing party to join the spouse. The condition to be satisfied for obtaining such decree are-

• The other spouse has withdrawn from the society of the petitioner (the person who has filed the suit).
• There is no reasonable excuse for such withdrawal. If the respondent alleges the presence of a reasonable excuse, the burden of proof lies on him/her.
• The court is satisfied with the reality of the statements made within the petition.
• No legal grounds exist for refusing the decree.

There is withdrawal from society when one among the spouses, without reasonable excuse, terminates an existing relationship with the intention of leaving the other and permanently or indefinitely abandoning such relationship. Thus, while a husband and wife could be sometimes living apart but maintaining their marriage, in such a case there would be no withdrawal from society.

So, after the solemnization of the wedding/marriage, if either of the spouses without reasonable excuse withdraws himself or herself from the society of the opposite spouse then the aggrieved party has a right to file a petition with the family court for restitution of conjugal right.

In Ranjana Kejriwal v. Vinod Kumar Kejriwal, Petitioner Wife alleged that the husband was already married and had suppressed the very fact from her. The Court held that the petition for restitution of legal right is not maintainable since there’s no legal marriage.

Law of Restitution of Legal Right

A husband has the right to need his wife to stay with him wherever he may prefer to reside. On the opposite hand, it’s the corresponding duty of the wife to live together with her husband. However, there could also be circumstances that compel the spouses to stay in different places. These circumstances may furnish to be reasonable or simply an excuse was given to the wife to stay at a special or different place. It is for the Court to make a decision on whether the circumstances permit the wife to reside away from her husband.

Law provides that when either husband or the wife withdraws from the society of the opposite spouse, the aggrieved party may apply to the Court for a direction that the opposite party should accept him or her (Section 9 of the Hindu Marriage Act). Such a petition is to be filed before the District Judge.

The petitioner is to satisfy the Court that the opposite party has without reasonable excuse withdrawn from his or her society. So, if a wife has without reasonable excuse withdrawn from the society of the husband, then he can file a petition before the District Judge for such a relief. Once he files the petition, Court is to satisfy that it is simply a real desire to bring the opposite spouse back to the company of the petitioner.

Remember, when the Court finds that one’s own conduct debars the petitioner from seeking this relief or a fact shows that the petitioner is taking advantage of the wrong which has been committed by them on their own, the Court shall dismiss such a petition. (Read section 23 of the Hindu Marriage Act).

The petition could also be dismissed if the Court finds that there is no truth within the statements made by the person filing the suit. If Court finds that the wife has a reasonable excuse to withdraw from the society of the husband, in such a case the petition shall be dismissed. The court shall dismiss the petition if it is found that there are other legal grounds for dismissing the petition.

Here the question which arises is when can it be said that the opposite party has a reasonable excuse to withdraw from the society of the other partner? During this respect, it’s to be remembered that if the wife withdraws from husband’s society and she or he alleges that she withdrew from his society for a reasonable excuse, it’s for her to prove that she withdrew for a reasonable excuse. If it’s proved that one’s conduct as a husband is grave and weighty matter which provides the wife with good cause for leaving the husband, then the husband would not be entitled to obtaining a decree for restitution of conjugal right.

On the opposite hand, if the husband withdraws from the wife’s society and he alleges that he withdrew for a reasonable excuse, the burden of proof would lie on the husband. 

Case Laws

T Sareetha v. T. Venkanta Subbaih

The court here held that Section 9 of the Hindu Marriage Act violated Article 21 of the Indian Constitution’s right to privacy and human dignity and therefore, is ultra vires to the Indian Constitution. 

Restitution of conjugal rights is the most common way to violate an individual’s right to privacy. 

Chitralekha Shibhi Kunju v. Shibu Kunju

It is a  Bombay High Court judgment, the court clearly stated that Section 9 is only applicable when the marriage is legally valid. It is well-established law now that the burden of proof will be on the respondent once the petitioner is successful in proving that the respondent withdrew from the society of the petitioner. 

Huhhram v. Misri Bai

In this case, the court passed the order of restitution of conjugal rights when it was against the will of the wife even though she had made it abundantly clear that she did not wish to reside with the husband, the court still passed the decree in the husband’s favour.