Meaning of Conjugal Rights
It is the rights between spouses especially regards to sexual relations which is exercisable in law by each partner in a marriage. In simple meaning Restitution of Conjugal Rights is that right which provides that if either the husband or the wife withdraws from the society of the other, without reasonable excuse, the aggrieved party may approach the Court for restitution of conjugal rights.
In India marriage is treated as a holy ceremony and parties hope a lot from like dreams related to their life partner. But many times, things go wrong and doesn’t work out as dreamed and thus parties find disagreements and quarrels between them, making them decide to go for divorce. But in the cases where one of the spouses feels that things are not gone that much worse but are just some silly matters, then that spouse can file an application for Restitution of Conjugal Rights in order to do a new start.
In this article, I will discuss the provision of Restitution of conjugal rights under the Hindu Marriage Act, 1955.
Restitution of conjugal rights (Section 9)
Section 9 of Hindu Marriage Act, 1995, states that if either party (either the husband or the wife) without any reasonable excuse withdraw from the society of other, the aggrieved party may approach the Court for restitution of conjugal rights.
Therefore, it is the right of both the spouse to live in the company of each other and enjoy their matrimonial rights. However, there may be circumstances where the husband and wife live in a different place. But such circumstance may furnish reasonable or just excuse to either party to live at a different place. Hence, it is on the Court to decide as to whether the circumstance permits the spouse to reside apart. Therefore, the law provides that where spouses withdraw from the society of other, aggrieved party may file the petition before the District Judge under section 9 of this Act for the direction that other party should live with him or her.
In the case of Smt. Kailash Wati v. Ayodhia Prakash, Court broke down question in three parts and dealt with each part separately;
- When the wife is already working before and at the time of marriage
- When the husband encourages/allows his wife to take up employment after marriage
- When the wife accepts employment away from the matrimonial home, against the wishes of the husband.
In the first instance, it was held that marrying an already working wife does not by implication mean that the husband gives up his claim to share a matrimonial house with his wife. Similarly, even in the second instance, the husband does not abandon his right to live with his wife. In these cases, the court, thus, has to look deeper into the facts and circumstances of the case to determine and enforce the rights of the parties. However, in the third instance, the court held that it was an “obvious case of unilateral and unreasonable withdrawal from the society of the husband and thus a patent violation of the mutual obligation of the husband and wife to live together.”
Hence, we can conclude from the above, that the petitioner has to satisfy the Court that the defendant has withdrawn without any reasonable excuse from the society of the petitioner.
In the case of Kamaladevi v. Shiva Kumar Swamy, Where it is found that conduct of husband created reasonable apprehension in the mind of wife that it would be unsafe for her to stay with husband, the decree for restitution of conjugal rights in favour of husband cannot be granted.
Constitutional validity of restitution of conjugal rights
In the case of Sareetha vs. T. Venkatasubbaiah, In this case, petitioner was an actress and due to her shooting, she stayed separate from her husband for five years. Her husband file petition of restitution of conjugal rights under HMA, so petitioner filed a case in the Andhra Pradesh High Court by calming that sec 9 of HMA is unconstitutional because it violates Article 14 & 21 of the Constitution and it was held as void by the Court.
Smt. Saroj Rani vs Sudarshan Kumar Chadha, In this case, Hon’ble supreme court held that sec 9 of HMA, restitution of conjugal rights does not violate Article 14 & 21 of the constitution. The only purpose of restitution of conjugal rights is to prevent the separation between the parties. Therefore, it promotes the reconciliation and good matrimonial relationship between the parties. Also, it protects society from denigrating.
The case Ojaswa Pathak & Anr vs. Union of India, which is sub judice before the Hon’ble Supreme Court, will be heard by three bench judges. The petitioners, in this case, have challenged the constitutional validity of various legal provisions permitting the restitution of conjugal rights, on the grounds that it places a “disproportionate burden” on the woman.
The petitioners have challenged the provisions section 9 of the Hindu Marriage Act, Section 22 of the Special Marriage Act and Order XXI Rule 32 and 33 of the Code of Civil Procedure all which provide a statutory proviso for the restitution of conjugal rights – be struck down for being unconstitutional.
The petitioners contended that the “legislative package” providing for these rights is “unconstitutional” as that while the legal framework is “facially neutral”, it places “disproportionate burden on the woman and thus is a violation of Article 14 and 15(1) of the Indian Constitution.
After completing the article, in my opinion as marriage is a holy sacrament for Hindus, Section 9 is having a great significance. Marriage is the union of two souls and every step should be taken to retain it. As with each passing day, society is changing as well the thought and wants of people too. The Court should not straight away struck down the provision of Restitution of Conjugal Rights but should analysis each case to satisfy it that whether either party has withdrawn without any reasonable excuse from a society of the other or not as this provision shields society from condescending.
 LXXIX P. L. R. 216. (1977)
AIR 2003 Kar 36.
AIR 1983 AP 356
AIR 1984 SC 1562
Writ petition(civil)No. 250/2019