What is Restitution of Conjugal Rights?

The restitution of Conjugal Rights is a legal right that draws its validity from Section 9, Hindu Marriage Act. The husband or the wife who is withdrawn from the other partner’s company without reasonable cause, the aggrieved party may petition the district court for restitution of conjugal rights. In simple terms, the restitution of conjugal rights means getting back the company of the spouse who has left without any reasonable cause.

Who can seek the relief of restitution of conjugal rights?

Under Section 9, the Hindu Marriage Act, either husband or wife can file a petition, when either the husband or the wife has withdrawn from the other’s society without reasonable cause, the aggrieved party may petition the district court for restitution of conjugal rights, and the court, if satisfied that the statements made in the petition are true and that there is no legal reason why the application must not be granted, may decree restitution of conjugal rights.

Why is the relief of restitution of conjugal rights granted?

The legislature in its wisdom has given statutory remedy to either of the spouse to bring back the company of the spouse who has left without a reasonable cause and the intention of the legislature is to protect the sanctity and validity of the institution of marriage.

When & where can the relief of restitution of conjugal rights be sought?

Whenever the husband or the wife is withdrawn from the other’s society without reasonable cause, the district court’s jurisdiction is invoked. The jurisdiction of Principal Judge, Family Court in terms of Section 19 of Hindu Marriage Act shall be invoked for Restitution of Conjugal Rights. According to Section 19, HMA every petition filed under this Act should be filed in the Family Court of the original civil jurisdiction where:

  • The marriage was solemnised;
  • The respondent resides;
  • The parties to the marriage last lived together;
  • If the wife is the petitioner, where she has been residing on the date of filing the petition.

Procedure and Steps for restitution of conjugal rights:

Step 1: Filing of the Petition;

Step 2: Filing Reply;

Step 3: Petitioner’s Evidence;

Step 4: Respondent’s Evidence;

Step 5: Arguments;

Step 6: Judgment & Decree.

Constitutional Challenge before the Hon’ble Supreme Court:

Previous challenge: The constitutional validity of Section 9, HMA was challenged before the Hon’ble Supreme Court in Smt. Saroj Rani vs. Sudarshan Kumar Chadha, 1984 AIR 1562. The Hon’ble Supreme Court held that in India, conjugal rights, i.e., the right of a husband or wife to the company of the other spouse, are not just authority of the law. The right to divorce is enshrined in the institution of marriage itself. Section 9 of the Hindu Marriage Act contains adequate protections to prevent it from becoming a tyranny. It also held that if the aim of the decree for restitution of conjugal rights in the stated Act is considered in its proper perspective and the mode of implementation in cases of disobedience is kept in mind, Section 9 of the Act does not violate Article 14 or Article 21 of the Constitution. It overruled the Andhra Pradesh High Court judgment.

Fresh ChallengeA fresh challenge to the constitutional validity of Section 9, HMA was filed before the Hon’ble Supreme Court in Ojaswa Pathak and Anr. vs. Union of India, WP (C) 250/2019. The outcome of this case will likely to be impacted by the judgments of the Hon’ble Supreme Court in Justice KS Puttaswamy vs. Union of India, 2017 10 S.C.C. 1, Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1, & Joseph Shine vs. Union of India, (2019) 3 SCC 39, where the Hon’ble Supreme Court declared the provisions of Laws as Unconstitutional.

Is it litigation worth fighting for in the Courts?

The positive outcome of the litigation for restitution of conjugal rights under section 9, HMA is practically difficult to be enforced by the Court. Although, at times, the court looks at the Petition as the affirmative action on the part of the spouse who files it. Resultantly, the petition under Section 9, HMA can benefit the party who files it.

Do you need any legal consultation in your matrimonial dispute?

The couples involved in a matrimonial dispute are under a lot of stress and at times, the litigation becomes tedious. The best matrimonial lawyers can provide you with expert guidance and the consequences of your steps. You can seek legal advice on your matrimonial matters from our qualified matrimonial lawyers at The Law Codes.