As a result of marriage, two individuals have a purest bond that gives them acceptance into society where they live together sharing each other’s assets and livelihoods. During marriage, parties are obliged to follow certain rights and duties. As opposed to most other countries, marriage in India is seen as the most sacred bond not only between the two individuals but also between their families.

It is possible, however, for marriages to fail due to differences in opinion or clashes in thought, resulting in judicial separations and divorces. In cases where one party wants to end a matrimonial relationship but the other party wants to cohabit.

Act of 1955 Relating to Hindu Marriage:

The Hindu Marriage Act, 1955 deals with marriage, divorce, maintenance and judicial custody of children among Hindus. Section 9 of Hindu Marriage Act provides for the Restitution of Conjugal Rights. As per the provision, when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

The Requirements of Section 9 Are as Follows:

Section 9 restitution of conjugal rights must be applied as follows:

• Marriage should be legal.
• Couples cannot live together.
• It must be unreasonable to withdraw from other societies.
• Couples must file for restitution.

It has been observed in a number of cases, including Sushila Bai v. The husband left his wife at her parents’ home and asked her to return when needed, over which the wife filed under Section 9 and the court granted the decree after finding that there was no reasonable reason to withdraw from his society. Jagdish Lal v. Smt is another case that cites the reasonable excuse issue. According to Shyama Madan [3], the wife had proved that her husband was impotent, which provided a reasonable excuse for withdrawing the spouse from society.

A wife in Ranjana Vinodkumar Kejriwal v. Shri Vinod Kumar Kejriwal [4] sued her husband for restitution of conjugal rights. The wife also sued her husband for restitution of her conjugal rights.

Reasons for Refusal to Grant Conjugal Rights Restitution

Conjugal rights can be refused on the following grounds:

• Family or husband cruelty.
• Husband fails to perform marital obligations.
• The husband does not pay the dower.

Proof Responsibility

It is the burden of proof for the aggrieved party to prove the grounds for desertion are unreasonable, and then the respondent must prove the grounds for desertion are reasonable. A case supporting this is Rajesh Kumar Bagmar v. Swathi Rajeshkumar Bagmar.

Care & Upgrades

An application by the petitioner may be made to the courts under Section 25(1) of the Hindu Marriage Act requesting that the respondent provide maintenance. The Supreme Court affirmed this provision in the case of Seema v. Rakesh Kumar [7], which held that the petitioner, the wife, was entitled to maintenance when she couldn’t support herself.

The Divorce Process

After a decree for the restitution of conjugal rights is issued, and the decree has not been used by the parties for more than one year, Section 13(1A)(ii) allows the parties to divorce.

An Approach Based on the Law

Hindu Marriage Act Section 9 restores the rights and obligations of the aggrieved party. A section can, however, impose some fundamental rights instead of providing remedy. Various High Courts and Supreme Court judges have described the constitutionality of the section as violating fundamental rights.

Constitutional Validity of Section 9

Sareetha v. T. Venkata Subbaiyah [8] was the first case that challenged Section 9 constitutional validity. Husband filed the petition under Section 9. In the judgment against Section 9, J. Chowdhary cited several cases stating that Section 9 is in violation of Articles 14 and 21 since it promotes no legitimate public purpose.

As per the Delhi High Court’s ruling in Harvinder Kaur v. Harmender Singh Chowdhary[9], the court is able to impose the return of a spouse who has withdrawn from cohabitation through a decree of restitution of conjugal rights. In my opinion, section 9 preserves the marriage.

This issue was addressed by the Supreme Court in Saroj Rani v Sudarshan Kumar Chadha [10] and the Delhi High Court’s decision was accepted. According to the judgment, Section 9 does not violate Articles 14 or 21 of the Constitution, as it comes with safeguards that prevent it from being tyranny. 

Summary

As a result of these findings, it is concluded that restitution of conjugal rights is still required in the Indian legal system since it is a last chance to restore the marriage. But certain loopholes seem to defeat its purpose. When there was no emotional attachment between the couple, the decree became just a responsibility towards each other. Another downside of applying section 9 is that it would need to be shifted to arbitration, which would reduce court burden. Additionally, it will expedite the resolution of such matters as well as build confidence among the parties because not all wanted to have family matters disclosed.