The present article explains the concept of Restitution of Conjugal Rights under the context of Section 9 of the Hindu Marriage Act (HMA).
Marriage among Hindus is considered as a holy and a sacrosanct union. It is a religious sacrament that binds a man and a woman together in a permanent relationship.
Sociologist, R.N.Sharma(i) defines marriage as a relationship in which a man and a woman are bound together for the physical, social, and spiritual purposes of dharma, procreation, and sexual pleasure.
In Tekait Mon Mohini Jemadai vs Basant Kumar Singh(ii), the court held that marriage under Hindu law was a sacrament, an indissoluble union of flesh with flesh, bone with a bone to be continued even in the next world.
Codification of Hindu Laws very much changed the nature of marriage. The Hindu Marriage Act, 1955(iii) added provisions of divorce, remarriage of widows, etc. which was earlier frowned upon. But it would be an overarching remark to say that Hindu marriage is purely a contract.
Section 7 of the act emphasizes marriage according to religious rites and ceremonies, essentials of a valid contract are missing. While consent and a legal age are necessary to enter into the bond of marriage, child marriage or marriage with a person of unsound mind is not void per se.
Be that as it may, marriage once solemnized, whether contractual or sacramental gives rise to a bundle of rights. It changes the status of the couple to legally wedded husband and wife, legitimacy is conferred on children born out of this marriage. Marriage thus marks the beginning of a family.
Meaning of Restitution of Conjugal Rights
Restitution means- Restoration
Conjugal rights mean rights emanating from a marital bond.
Cumulatively these rights are called conjugal rights and form the very essence of a marital union. Restitution of conjugal rights means the right to stay together.
It is an accepted norm that each spouse is entitled to the society and comfort of the other and if any spouse, without any reasonable cause leaves any spouse, the latter can move the court for a decree of restitution of conjugal rights.
The restitution of conjugal rights is a positive remedy that is given to a spouse to protect their marriage, to facilitate cohabitation among couples, and to save the sanctity of marriage.
Section 9 | Essentials
In the Hindu marriage act, 1955 remedy of restitution of conjugal rights is provided under section 9 (iv)
Following are the essential requisites of section 9-
1. There must be a marriage between the parties i.e., the parties should be legally wedded, husband and wife.
2. There must be a withdrawal of one spouse from the society of the other spouse.
3. This withdrawal should be without any reasonable cause.
4. The aggrieved party in such a situation may apply for restitution of conjugal rights.
5. There should be no other legal ground for refusal of the relief.
6. The court should be satisfied with the truth of the statement made in the petition
7. Accordingly, the court may grant a decree in favor of the aggrieved party.
8. If the suit is successful, the couple would be required to stay together.
Meaning of Withdrawal from Society
Law Commission in its 71st report titled- Irretrievable breakdown of marriage as a ground of divorce in para 6.5 reads-“The essence of marriage is a sharing of common life, a sharing of all the happiness that life had to offer and all the misery that has to face in life. Living together is a symbol of such sharing. Living apart is a symbol indicating the negation of such sharing.”(v)
Law commission makes it clear that cohabitation is an essential condition of marriage. Cohabitation means living together as husband and wife, wife rendering wifely services to her husband; the husband rendering husband like service to his wife. They must live together not merely as two people living in one house, but as husband and wife.(vi)The object of the restitution decree is to bring about cohabitation between the estranged parties so that they can live together in the matrimonial home in amity.(vii)
Besides physical separation, withdrawal also involves a mental process. It is a process resulting in a physical separation where parties are willfully avoiding marital obligations.
Burden of Proof
An explanation has been appended to the section in the year 1976 which places the burden of proving reasonable excuse upon the spouse who has withdrawn from the society.
The petitioner would first prove his case that the other spouse has withdrawn from his society without any reasonable cause. The burden would then shift to the other spouse for the defense of a reasonable excuse.
What constitutes a reasonable excuse or a just cause is left to the subjective determination of each court. No straitjacket formula as such has been laid out. What would be a reasonable excuse will depend on the facts of each case. The reason must be grave and convincing.
In Smt. Sumanbai vs Anandrao Onkar Panpatil, 1976 (viii)- the court held that there can be no more insulting injury to the wife than her own husband questioning her chastity. And such a remark would amount to a reasonable excuse for the wife to withdraw from the society of her husband.
Iqbal Kaur vs Pritam Singh(ix), A Punjab HC judgment- the court held that allegation of unchastity was sufficient to amount to cruelty and reasonable excuse within the meaning of Section 9 of the Hindu Marriage Act.
R.Natarjan vs Sujatha Vasudevan 2011(x), the court held that if a wife is asking to live separately from husband’s aged parents, it does not amount to a reasonable excuse of withdrawal and the wife can be granted a decree for restitution of conjugal rights.
Sushila Bai v. Prem Narayan(xi), the husband deserted his wife and thereafter was unresponsive towards her. It was held by the court that such behavior is sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed.
Constitutional Validity of Section 9
Andhra Pradesh HC– T. Sareetha v. T. Venkata Subbaiah(xii), section 9 of Hindu Marriage Act, 1955 was held as unconstitutional because this decree snatches the privacy of the wife by compelling her to live with her husband against her wishes.
Delhi HC in Harvinder Kaur v.Harmander Singh (xiii), held section 9 of the Hindu Marriage Act as valid. Justice Krishna Iyer observed, “Introduction of the Constitutional Law in the Home is most inappropriate, it is like introducing a bull in a China shop”.
This view was upheld by the Supreme Court of India, in Saroj Rani v. S.K. Chadha(xiv). The SC held that in the privacy of home and married life Article 21 or Article 14 has no place.
With Supreme Court declaring the right to privacy as a fundamental right in K.S. Puttaswamy (xv) and Joseph shine(xvi) clarifying that privacy depends on the exercise of autonomy by individuals and the right to privacy cannot be infringed by considering familial structure a private space, debate is once again ripe on the constitutional validity of this section.
Section 9 HMA enables a spouse to file a petition for obtaining a decree of restitution of conjugal rights against the other spouse who has left his society without any reasonable cause. It is a positive remedy and a marriage-saving clause.
Marriage among Hindus is a sacrament, a relationship beyond birth and death, and section 9 facilitates the protection of such marriage. But times have changed and so have people.
Section 9 has emerged as a coercive clause that compels two adults to live together against their wishes. It is an anomaly that on one hand we advocate about freedom and personal liberty of an individual and on the other hand, a provision like section 9 exist which every so often compels spouses to live with each other even when there is no affection and care left.
The law that was taken from England was banned by England way back in 1970. But we have been stuck to our colonial roots.