Published by: Akshay Verma

College: Bhai Gurdas College of Law, Sangrur, Punjab.

Introduction:
Hindu Law agrees on the notion that after marriage husband and wife becomes one. Hindus
specifically emphasized that wife was ‘ardhangini’ i.e., half of the husband. According to
Hindu scriptures, every Hindu must get married because before marriage, a man was
incomplete; he became complete only after marriage.

Restitution of Conjugal Rights dates back to the feudal England, where marriage was
regarded as a property deal, and like other chattels, wife was part of man’s possession. She
was considered as a ‘cow’ who could be roped back if she ran away from her master’s shed.
It is significant to mention here that many common laws which were anachronistic in nature
were gradually abolished, however, some of them survived in matrimonial laws and from
there, were injected in the Colonies.

Restitution of Conjugal Rights under the Hindu Marriage Act, 1955:
As per Section 9 of the Hindu Marriage Act, 1955, when the wife or the husband withdraws
from the other’s society without any sufficient reason or excuse, then the party who is
aggrieved by such withdrawal may apply to the District Court by way of petition for
restitution of conjugal rights. The Court may pass a decree after it is satisfied that the
statements made in the petition are bonafide and no legal ground exists as to why the decree
should not be granted.

It is germane to mention here that it is the burden of the person who claims that he has
withdrawn from his/her spouse due a reasonable excuse to prove that such reasonable excuse
exists.

In Kamaladevi vs. Shiva Kumar Swamy, 1 in this case, it was held that where it is established
that the behaviour of the husband is such that is generated a reasonable apprehension in the
wife’s mind that it would not be safe for her to stay with her husband, the husband is not
entitled to get in his favour, the decree of restitution of conjugal rights.

It is important to note here that if the marriage between the parties is not valid, the no decree
of restitution of conjugal rights can be passed. In Prakash vs. Parmeshwari, 2 it was held that
once it is proved that the marriage is valid, everything essential for the validity of marriage,
such as performing required formalities and capacity to marry would be presumed.

Reasonable excuse/sufficient reason under Section 9 of the Hindu Marriage Act, 1955:
Usually, reasonable excuse/sufficient reason means:

(a) The ground on which matrimonial relief can be granted to the party.
(b) If the matrimonial misconduct does not establish any ground for divorce, it might also
be inferred as a sufficient reason if such misconduct by any of the party makes it
difficult for other party to live peacefully and safely.
Section 9 and its constitutional validity:

In T Sareetha vs. T VenkataSubah, 3 it was contended that Section 9 of the HMA, 1955 is
unconstitutional and against the person’s fundamental right to liberty and dignity assured
under Article 21 of the Indian Constitution. The High Court of Andhra Pradesh held that
Section 9 of the HMA, 1955 was void and unconstitutional as it violated the personal liberty.
The Court remarked that if the wife is forced to cohabit with her husband, then it will infringe
her right to privacy.

In Saroj Rani vs. Sudarshan Kumar Chandra, 4 the Apex Court held that Section 9 of the
Hindu Marriage Act, 1955 is valid and constitutional and held that the remedy of restitution
of conjugal rights has an object to safeguard the institution of marriage, and it does not
infringe the fundamental rights provided under Article 14, 19 and 21 of the Constitution of
India.

Conclusion:
The remedy of restitution of conjugal rights is a remedy aimed to protect the marriage and
unlike judicial separation or divorce, it does not put an end to marriage. In a petition seeking
restitution of conjugal rights, divorce as an alternative relief cannot be claimed because these
are mutually destructive of each other and hence, cannot be claimed together.