Section 9, Hindu Marriage Act When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights. The District 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.
Explanation Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
Decree of restitution of conjugal rights is an order of the court, which says that the spouses must continue to live together. The court directs the defaulting party for the restoration of marital duties and to cohabit with the other spouse. The restitution of conjugal rights means that, if one of the parties of marriage leaves the other; the latter is entitled to compel the former to live with him or her as the case may be. Decree of restitution of conjugal rights may be passed in case of valid marriages only.
Under section 9, the court has power to make a decree of restitution of conjugal rights. This is the remedy available to enforce the return of a spouse, who has withdrawn from cohabitation. The object is to facilitate reconciliation in matrimonial cases. This is done by asking the withdrawing spouse to return to the matrimonial home. If the restitution decree is not obeyed, the court dissolves the marriage on proof of non-compliance of the restitution decree.
The decree of restitution of conjugal rights acts as an index of connubial felicity. It is a sort of litmus paper. It shows a change of heart, if the restitution decree is obeyed. If the decree is disobeyed, it is an indication that the parties have reached a stage of no return. The Act's professed object is to facilitate reconciliation in matrimonial cases. This, it does by asking the withdrawing spouse to return to the matrimonial home and gives one year's time to do so. If the restitution decree is not obeyed, the court dissolves the marriage on proof of non-compliance of the restitution decree. Harvinder Kaur vs Harmander Singh1)
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. That is the primary purpose. Cohabitation does not necessary depend upon whether there is sexual intercourse between the husband and the wife. Cohabitation means living together as husband and wife; and cohabitation consists in the husband acting as a husband towards the wife and the wife acting as a wife towards the husband, the wife rendering house-wifely duties to the husband and the husband cherishing and supporting his wife as a husband should. Of course, sexual intercourse usually takes place between parties of moderate age, if they are cohabiting, and if there is sexual intercourse, it is very strong evidence; in fact, it may be conclusive evidence that they are cohabiting. But it does not follow that because they do not have sexual intercourse, they are not cohabiting. Cohabiting means the husband and wife living together as husband and wife.Thomas vs Thomas2)
The remedy of restitution aims at cohabitation and consortium and not merely at sexual intercourse. The restitution decree does not enforce sexual intercourse. This can be proved by a simple illustration.
A husband and a wife are living under the same roof. But the wife does not allow the husband sexual intercourse with her because she thinks that it is a horrid and beastly thing. Will the court pass a restitution decree? The answer is ‘No’. Since they are living together as one household, as one unit and not as two, the law cannot go further and compel them to have sexual intercourse. The court has neither the means nor the capacity to enforce its decree in the marriage bed.Harvinder Kaur vs Harmander Singh3)
Sub-section (1) indicates that the petitioner seeking restitution of conjugal rights, in order to get a decree, has to prove two things:
The word 'excuse' appears to have been advisedly used. It is something less than 'justification', and something more than a mere whim, fad, or brain-wave of the respondent. It is a fact which has to be determined with reference to the respondent's state of mind in the particular circumstances of each case.
The following facts have been held to amount to reasonable excuse—
In this case4) the husband was in service near Ajmer and the wife worked in Adipur. On the wife’s refusal to quit her job, the husband moved the petition for restitution of conjugal rights. The court held that, if there is no refusal on the part of the wife to allow access to her husband and no reluctance on her part in going to her husband, then the mere refusal on her part to resign her job is not a sufficient ground for the husband to seek relief for restitution of conjugal rights. Hence, the petition was dismissed.
In this case5) there was a pre-nuptial agreement between the husband and wife that after marriage, the husband would live with wife at her foster-father’s house. Subsequently, he was ill-treated there and returned to his village and requested his wife to come to his house. On her refusal, he initiated a suit of restitution of conjugal rights. The court held that pre-nuptial agreement was unenforceable and subsequently allowed the petition. As a general principle, any agreement, be it under Hindu law or Muslim law, between husband wife to live separately, is considered to be void for being contrary to public policy.
In the case of a couple, sharing the same household, if there is the rejection by one of the physical relationship, that does not amount to withdrawal from the society. Mere refusal to have sexual intercourse, while the parties are living together, does not amount to withdrawal from the society.6)
As during the lifetime of first spouse living, the second marriage is void, the man marrying when his first wife is living cannot claim restitution as against the second wife.7)
Where the husband makes the allegation of unchastity so that she is returned to her matrimonial home, and the allegation is not found to be baseless, it was held that this has to be considered along with the persistent refusal of the wife to stay with the husband. In the instant case, the petition moved by the wife for restitution of conjugal rights was not granted.8)
Where it is found that conduct of the husband created reasonable apprehension in the mind of the 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. 9)
In case there is no proper explanation as regards delay in filling the petition of restitution of conjugal rights, application should be regarded as unnecessary and improper.10)
In a petition of restitution of conjugal rights, alternative relief of divorce cannot be claimed. These prayers are mutually destructive of each other and, therefore, cannot be made together.11)
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on various subjects including Jurisprudence, Hindu Law and Environmental Laws.