This article is written by Shreya Pandey and Ganesh. R, This article contains a detailed study of Section 9 of the Hindu Marriage Act,1955. Also, this article offers a comprehensive analysis of the legal precedents and applications of Section 9. Further, there is a comparison between Section 9 of the Hindu Marriage Act,1955 and Article 21 of the Indian Constitution to highlight the complexity between marital obligations and individual rights. 

Introduction

In India, marriage is considered a sacrament where the man and woman getting married are considered to get bonded within one relationship where they will be considered as one soul. When a man and woman get married, they follow certain customs according to their culture and religion, which brings them together for their entire lives. They are considered to be living together till their last breath, sharing all their happiness, and sadness, and being each other’s support. 

Imagine a situation where two people get married to each other, and after the marriage, the husband leaves the wife and settles somewhere else without explaining anything or giving any valid reason. In this situation, the woman who left her family and got married to the man with so many dreams is left unanswered, with broken dreams and hearts. In this case, the woman has all rights to take a legal step to compel her husband to live with her and live a life where she doesn’t feel abandoned by her husband. Such a legal right is not only available for a woman, but a man can also avail himself of this right if his wife withdraws from the society of the husband without giving any reasonable excuse.

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The Hindu Marriage Act, 1955 provides the married couple with certain duties and rights against each other in their marriage. In a marriage, it is presumed that the man and the woman should live together after marriage. Both parties in a marriage have the right to get comfort from their spouse, and if unreasonably one of the spouses fails to fulfil their obligations, then the other spouse has the right to remedy to compel him or her to do so.

Restitution of conjugal rights

Restitution of conjugal rights means resuming the marital relationship between both spouses. The main objective is to consummate the marriage and get along with each other’s society and comforts. The petition for restitution of conjugal rights is filed to make the court intervene between the parties to decide the case and grant the decree of restitution to preserve the marriage union.

Restitution of conjugal rights is a relief or remedy available to either of the parties to the marriage who got abandoned by the other spouse without explaining or giving any just and reasonable grounds for abandonment.

Understanding Section 9 of the Hindu Marriage Act, 1955

Marriage in Smt. Saroj Rani vs. Sudarshan Kumar Chadha, (1984), is contemplated to be a bond where both husband and wife should share a common life where they will share happiness and will stand by each other even in miseries. 

Section 9 of the Hindu Marriage Act, 1955 talks about the restitution of conjugal rights. It states that in a situation where a husband or wife withdraws from the society of the other spouse without giving them any reasonable cause, the other spouse has the remedy to file a petition before a district court for restitution of conjugal rights. If the court is satisfied that the statements presented in the petition are true and there is no legal bar to granting the remedy of restitution, then the court may pass the decree of restitution of conjugal rights.

This Section states that the court may grant a decree for the restitution of conjugal rights under the following conditions:

  1. When either party without giving any reasonable cause, withdraws from the society of the other spouse,
  2. The court is satisfied with the fact that the statements made in the petition are true.
  3. There is no legal ground on which the petition shall be declined.

Under this Section, the term ‘society’ means cohabitation and companionship that a person expects in a marriage. The term ‘withdrawal from society’ means ‘withdrawal from a conjugal relationship’.

In Mrs. Manjula Zaverilal vs. Zaverilal Vithal Das, (1973), the court stated that when the aggrieved party files a petition for the restitution of conjugal rights and proves that the defending party has withdrawn from the society of the aggrieved party, then the defending party shall thrive to prove that there was a reasonable cause to abandon or leave their spouse. 

Essential elements of Section 9 of Hindu Marriage Act, 1955

Following are the essential elements of Section 9 of the Hindu Marriage Act, 1955:

  1. The marriage between the applicant and defendant is legal, valid, and existing.
  2. The defendant should withdraw from the society of the applicant.
  3. Such withdrawal from society should be unjust and unreasonable.
  4. The court should be satisfied that the petition and the facts stated by the applicant are true.
  5. The court should be satisfied that there is no legal ground to refuse the decree.

Petition under Section 9 of the Hindu Marriage Act, 1955

  • Either of the spouses can file the petition under Section 9 of the Hindu Marriage Act, 1955.
  • The party that has been abandoned by the other person in the marriage is supposed to file a case under this Section.
  • The petition is made by the person who wants to re-establish their marriage to compel the other person to perform their obligations and consummate their marriage.

Prerequisites for filing a case under Section 9 of the Hindu Marriage Act, 1955

To file a case under this Section, the following two prerequisites should be met:

  1. The husband and wife must be living separately without a reasonable excuse.
  2. The aggrieved spouse has filed the case under Section 9 of the Hindu Marriage Act.

Place and time to file the petition under this Section

The petition for restitution of conjugal rights is filed before a family court having jurisdiction over the area where:

  1. The marriage ceremony was performed,
  2. The spouses used to live together.
  3. The wife is currently residing.

The appropriate Family Court, after hearing both sides and after getting satisfied that the spouse left without giving any reasonable cause, will order that spouse to live with the aggrieved party and, if necessary, give a decree attaching the defendant’s property. If the defendant does not fulfil the direction given in the decree by the family court within one year, then the petitioner can file a case of divorce.

An application for the execution of a decree

For the execution of a decree of restitution of conjugal rights, the petitioner can file a case of execution petition before a Trial Court. This is the second step that the spouse should take after he or she obtains a decree under the restitution of conjugal rights. For the execution of a decree passed under Section 9 of the Hindu Marriage Act, either spouse holding the decree can file a case under Order 21 Rule 32 of the Civil Procedure Code. It deals with the execution of the decree passed for the restitution of conjugal rights.

Order 21 Rule 32 states that if the party against whom the decree has been passed for specific performance does not obey or voluntarily fails to obey, the other party can file a case of execution that can be enforced in the following two ways:

  1. Detention in a civil prison; or
  2. Attachment of property.

Grounds for rejection of the petition

In Sushila Bai vs. Prem Narayan Rai, (1985), the court held that the following can be the defences to the suit of restitution:

  1. The respondent can claim matrimonial relief against the suit.
  2. Any evidence that proves that the petitioner is guilty of any misconduct.
  3. In a situation where it is impossible for both spouses to live together.

The grounds for rejection of the petition for the restitution of conjugal rights can be:

  1. Cruelty by the petitioner
  2. Matrimonial misconduct
  3. Remarriage of either of the spouses
  4. Delay in the initiation of the proceedings.

Burden of proof

The burden of proof is on both parties in the following ways:

  1. Petitioner – The petitioner filing the petition has the initial burden of proof to prove that the respondent has, without giving any reasonable cause, abandoned or withdrawn from the petitioner’s society.

In Mrs. Aruna Gordon vs. Mr. G.V. Gordon, (1999), a revision petition was filed to shift the burden of proving whether the respondent has withdrawn from society without giving reasonable cause to the respondent itself. The court held that the burden of proof will remain on the petitioner initially to prove that the respondent has withdrawn from the petitioner’s society without giving any reasonable cause, and then the burden of proof will shift to the respondent to discharge himself from the statements made against him and prove that the withdrawal was made after giving reasonable cause.

  1. Respondent – When the petitioner proves that the respondent has withdrawn from the petitioner’s society, then the burden of proof shifts to the respondent to prove that there was a reasonable excuse for withdrawing from the petitioner’s society.

In P. Rajesh Kumar Bagmar vs. Swathi Rajesh Kumar Bagmar, (2008) the court held that the burden of proof initially falls upon the petitioner claiming for the decree of restitution to prove that the respondent has withdrawn from the society of the petitioner without any reasonable cause, and when the court is satisfied with the statements made by the petitioner to be true, the burden shifts to the respondent to prove that there exists a reasonable excuse for such withdrawal.

The meaning of a reasonable excuse

The term ‘reasonable excuse’ used under Section 9 of the Hindu Marriage Act might mean the following:

  1. A reasonable excuse can be anything that could grant the respondent matrimonial relief.
  2. If the petitioner is guilty of matrimonial misconduct, which is not a ground for divorce or separation under the Act, it is grave enough to form a reasonable excuse.
  3. If the petitioner is guilty of conjugal misconduct or any such act or omission that makes it hard or almost impossible for the respondent to live with the petitioner, then that would also be considered a reasonable excuse.

The following could be a reasonable excuse:

  • Cruelty.
  • Impotency.
  • Dowry demand
  • False accusations of adultery
  • Refusal to cohabit
  • Any such act makes it impossible for the other person to continue to live with the petitioner.

Provisions for restitution of conjugal rights in other statutes

In India, the remedy of restitution of conjugal rights is available not only under Section 9 of the Hindu Marriage Act, 1955, but also in the following provisions as well:

Section 32 of Indian Divorce Act, 1869

Section 32 of the Indian Divorce Act,1869, deals with the decree of restitution of conjugal rights. Under this Section, a spouse who was deserted by another spouse without any reasonable cause can file a petition with the court seeking restitution of conjugal rights. The court, after examining the provided evidence, and if the court is satisfied with the true statement made in the petition and divides there is no legal ground for refusal, may pass a decree to the respondent to cohabit with the petitioner. The main aim of this Section is to protect marriage from being broken for small reasons, and this Section ensures to restore marital harmony and fulfil marital obligations towards each other. However, such a decree can raise several legal questions about mandating cohabitation with the spouse, which may conflict with the other respondent’s personal freedom and privacy. In essence, Section 32 of the Indian Divorce Act,1869, reflects the traditional view of marriage as a sacred tradition and an indissoluble union, highlighting the importance of the marital bond through judicial intervention if it is needed. 

Section 33 of Indian Divorce Act, 1869

Section 33 of the Indian Divorce Act, 1869 provides defences available to the respondent in a petition for restitution of conjugal rights. According to this Section, the respondent has the privilege to resist the decree of the court by providing evidence to prove the petitioner is guilty of cruelty, desertion, adultery, or any other act that would entitle them to a decree for judicial separation or divorce. This Act ensures that the spouse cannot be compelled to cohabit if the petitioner has taken any actions that undermine the marital relationship or cause any harm to the respondent. Section 33 of the Indian Divorce Act provides equal opportunity and balanced rights for both spouses, protecting the respondent from forceful or against their will cohabitation with another spouse. Also, the law recognizes that the restitution of conjugal rights is not absolute and must be exercised in the manner of dignity for both parties involved in the case. The main aim of this provision is to protect the respondent from forceful cohabitation and to ensure the decrease passed by the court is fair and reasonable.

Section 36 of Parsi Marriage and Divorce Act, 1936

Section 36 of the Parsi Marriage and Divorce Act, 1936, deals with the maintenance of a wife during the pendency of divorce or during the restitution proceeding, which reflects the importance of supporting the wife during the marital dispute in court. This Section is crucial as it gives financial protection to the spouse who is seeking the restoration of cohabitation. When a wife is the petitioner in the issue of restitution conjugal rights, she may face emotional and financial challenges in the process of proceeding, hence, Section 36 empowers the court to grant maintenance to decrease her burdens. Section 36 mainly aims to protect the rights of the wife during the restitution of conjugal rights and it also ensures a complete safeguard of her dignity and sustenance while navigating the marital dispute, which ultimately contributes towards preserving the sanctity of marriage. 

Section 22 of Special Marriage Act, 1954

Section 22 of the Special Marriage Act, 1954 deals with the restitution of conjugal rights, allowing the spouse to file a petition against another spouse if the other spouse has withdrawn from the marriage without reasonable cause. During the proceeding, the court reviews the provided evidence, examines the circumstances of the case, and gives a verdict that suits the marital relationship. If there was no reasonable cause for the separation, then the ruling will be in favour of the petitioner. This mechanism aims to preserve marriage sanctity and encourage the continuity of marriage. However, this Section raises legal questions regarding a person’s privacy and autonomy as an individual. Section 22 of the Special Marriage Act, plays a crucial role in the legal framework in promoting marital unity and promoting structured processes in the issue of separation, which directly reflects the goal of safeguarding the institution of marriage in India. 

Need for restitution of conjugal rights

Marriage in India is considered to be a bond that is to be continued even after death. Withdrawal or abandonment is considered not to be good or normal, so it thrives hard for both parties to a marriage to sort out their problems, get along with each other, and stay together. When a man and woman marry each other, they are considered to be one soul who cannot live without each other, and therefore, it becomes very essential that in a case where one person abandons the other, certain steps are taken to bring the couple together so they understand the seriousness of the relationship they are in. Restitution of conjugal rights is the step that compels both parties to live with each other. 

Restitution of conjugal rights is a remedy that one person can avail of if he or she desires to give their relationship one chance to work out. Therefore, it is very important that there is a legal remedy in the law that could help a person in a marital relationship to live together where they can sort out their differences, give a chance to their bond, or come to a mutual understanding of whether they can live together in the future or not. Without giving that one chance, one person is left abandoned, unanswered, and without reasonable excuse.

Article 21 of the Indian Constitution

The right to privacy was a fundamental right that was guaranteed under Article 21 of the Indian Constitution, 1950. Which they ensure to protect individual autonomy and dignity. This was highlighted in the case of K.S. Puttaswamy vs. Union of India (2018), in which they held that the right to privacy was a fundamental right and the main aim of this right is to protect the dignity and autonomy of the individual of the state. Also, this right ensures that the individual has the right to make personal decisions regarding their bodies, relationships, and beliefs without any intervention from the judiciary. The concept of restitution conjugal rights has been subject to many criticisms in accordance with the right to privacy because the decree of the court forces cohabitation, which may infringe upon the person’s dignity and freedom to make intimate choices. 

Jurisprudence of conjugal rights and the right to privacy

The concept of restitution of conjugal rights under the Hindu Marriage Act, 1955, is complexly linked with the individual right to privacy, which directly and indirectly raises several legal questions and ethical problems. Under Section 9 of the Hindu Marriage Act, the spouse can seek remedy from the court by order requiring the other spouse to recommence cohabitation if they have withdrawn from the marriage relationship without giving a reasonable cause. Section 9 of the said Act aims to provide protection for marital harmony and ensure the continuity of the marriage since it is considered a sacred form of tradition under Hindu laws. These actions and provisions of the said Act were criticised for potentially violating the fundamental rights that were guaranteed under the Constitution of India and individual autonomy. 

As we speak of fundamental rights under Article 21 of the Indian Constitution, which deals with personal dignity, autonomy, and the right to make decisions in their intimate relationships without unwarranted interference, Critics argued that compelling the spouse to cohabit through a court decree directly violated the person’s right to privacy, which was guaranteed under Article 21 of the Constitution of India. By taking this action, the state is involved in mandating personal space as well as in the person’s intimate aspects of their life. Which can affect a person’s privacy in intimate matters of their life. In the landmark ruling in the case of Justice K.S. Puttaswamy (Retd.) vs. Union of India (2018), in which they said that the right to privacy was intrinsic to the right to life and personal liberty, which raised doubt on the constitutionality of Section 9 of the Hindu Marriage Act.

The complexity between Section 9 of the Hindu Marriage Act and Article 21 of the Constitution is evident in many judicial pronouncements. In the case of T. Sareetha vs. Vnekata Subbaiah (1983), the Andhra Pradesh High Court held that forcing a spouse to cohabit directly violates their personal freedom and privacy, declaring Section 9 of the Hindu Marriage Act as unconstitutional. However, this view of the High Court was overruled by the Supreme Court in the case of Saroj Rani vs. Sudarshan Kumar Chadha (1984), which upheld the constitutionality of Section 9 of the Hindu Marriage Act, highlighting the importance of marital continuity and unity, and also mentioned the state’s duty in preserving the institution of marriage. 

The ongoing debate over the complexity of Section 9 and Article 21 reflects a detailed understanding of privacy and individual rights within the ambit of the marital law framework. Section 9 of the Hindu Marriage Act, which deals with the restitution of conjugal rights and aims to protect marital bonds and ensure continuity of marriage, must be balanced against the fundamental rights to privacy that were guaranteed by the constitution, ensuring personal liberty and autonomy. It should not be compromised in the quest to uphold tradition and marital norms.

Important judicial precedents

Saroj Rani vs. Sudarshan Kumar Chadha (1984)

Facts 

In this case, Saroj Rani and Sudarshan Chadha got married in 1971. After some time, Sudarshan withdrew from the marriage without any reasonable cause. So, Saroj Rani filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. Sudarshan contested the petition, citing various reasons for separation, which include allegations of cruelty and his inability to live with his spouse.

Issue

Whether the decree of restitution conjugal rights could be granted?

Judgement 

The Supreme Court upheld the validity of Section 9 of the Hindu Marriage Act, highlighting that the provision serves an important purpose in protecting and preserving martial bonds. So, the court held that the respondent must cohabit with Saroj Rani since there is no reasonable reason for the separation. Also, the court stated that if the respondent did not comply with the decree passed by the court within one year, then the petitioner could file a petition for divorce under Section 13 of the Hindu Marriage Act. 

Seema vs. Rakesh Kumar (2000)

Facts

In this case, Seema and Rakesh Kumar got married under the Hindu Marriage Act. After the marriage, Seema filed a petition under Section 9 of the Hindu Marriage Act, seeking court intervention stating that Rakesh Kumar had withdrawn from the marriage without any reasonable reason and that he had not been cohabiting with her. 

Issue

  1. Whether the petition filed under Section 9 of the Hindu Marriage Act is valid?
  2. Whether the court can pass a decree in cohabitation?

Judgement 

The Supreme Court upheld Seema’s petition, acknowledging that the petition filed under Section 9 of the Hindu Marriage Act is valid. Also, the court highlighted the importance of continuity of marriage, held that the decree of restitution could grant conjugal rights and said that the petitioner is entitled to receive maintenance from the respondent if she is facing emotional or financial challenges. 

Jagadish Lal vs. Smt. Shyama Madan & Ors. (1964)

Facts

In this case, Jagadish Lal and Shyama were married, but soon after their marriage, their relationship deteriorated. Shyama filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights, claiming that Jagadish had withdrawn from the marriage without any reasonable cause. 

Issue 

Whether the court could grant a decree for the restitution of conjugal rights?

Judgement

The court ruled in favour of Shyama Madan, granting her petition for restitution of conjugal rights. It highlights the importance of maintaining the marital bond and also ensures the sanctity of the marriage. 

Harvinder Kaur vs. Harmander Singh Choudhry (1983)

Facts

In this case, the petitioner and respondent got married under the Hindu Marriage Act. Later, a conflict was formed between the couples, which led to the filing of a petition by Harvinder Kaur under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. Harvinder Singh stated that the restitution of conjugal rights was unconstitutional as it violated Article 21 of the Constitution which guarantees the fundamental right to privacy and personal liberty. 

Issue 

Whether Section 9 of the Hindu Marriage Act is constitutionally valid?

Judgement

The court highlighted that Section 9 of the Hindu Marriage Act is constitutionally valid, and the court held that the provision did not violate Article 21 of the Constitution which guarantees the right to privacy and personal liberty. The court encourages cohabitation between the spouses but at the same time, it also highlights the importance of personal liberty. Even though the court acknowledged Article 21, they stuck with the state’s interest in preserving the institution of marriage. The decree of restitution of conjugal rights acts as an inducement for the couples to live together.

Babita vs. Munna Lal (2022)

Facts 

In this case, Babita filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights, which was granted by the court. Despite this decree, Babita filed a petition to seek maintenance from her husband Munna Lal under Section 125 of the Code of Criminal Procedure, 1973 (CrPC). Munna Lal opposed this petition, stating that the court had given a decree for the restitution of conjugal rights, so Babita should not be entitled to another maintenance. 

Issue 

Whether a decree from the court for restitution of conjugal rights under Section 9 of the Hindu Marriage Act limits the wife from seeking maintenance under Section 125 of the Code of Criminal Procedure (CrPC)?

Judgement 

The court ruled in favour of Babita, stating that a decree from the court for restitution of conjugal rights will not bar the wife from seeking another maintenance under Section 125 of Code of Criminal Procedure (CrPC). Also, the court highlighted that the spouse seeking maintenance must be protected irrespective of the restitution of the conjugal rights decree. 

Constitutionality of Section 9 of Hindu Marriage Act, 1955

The question of the constitutionality of Section 9 of the Hindu Marriage Act, 1955, was raised in the case of T. Sareetha vs. T. Venkata Subbaiah, (1983), where it was argued that this Section is constitutionally invalid as it violates the fundamental right to liberty guaranteed under Article 21 of the Indian constitution. The High Court of Andhra Pradesh held that Section 9 of the Hindu Marriage Act is unconstitutional and void as it is violative of personal liberty, which is a fundamental right guaranteed under Article 21 of the Indian Constitution . It was stated by the Court that “if the wife is compelled to live with her husband, this will also violate her right to privacy.” and the Court further stated that “the remedy of restitution offends the inviolability of the body and mind and invades the marital privacy and domestic intimacies of such a person.”

Later, the Supreme Court in the case of Saroj Rani vs. Sudarshan Kumar Chandra, 1984, resolved the conflict between Section 9 of the Hindu Marriage Act and Article 21 of the Indian Constitution by upholding the decision made by the Delhi High Court in the case of Harvinder Kaur vs. Harvinder Singh, 1984, and holding that “the object of the degree was only to offer an inducement for the spouse to live together, and it does not force an unwilling wife to engage in sexual relationships with the husband.”

Restitution of conjugal rights is a remedy that tries to protect the marital relationship of a couple, and it doesn’t violate any fundamental rights guaranteed by the Indian Constitution . The Court further clarified that the decree of restitution of the conjugal rights does not force the couple to get into a sexual relationship with each other; it only tries to bring in a consortium between them. 

In Ojaswa Pathak vs. Union of India, (2019), the constitutionality of restitution of conjugal rights was challenged on the following grounds:

  1. The decree given under this Section is against a woman’s autonomy as it forces a woman to return to her husband’s home without her will, where she might be subjected to brutality or misconduct.
  2. This Section indirectly goes against the private interest of sexual autonomy and makes them come into a sexual relationship with each other, which is violative of Article 21 of the Indian Constitution.
  3. This Section imposes an unequal and unjust burden on women, which is contrary to Article 14 and Article 15(1) of the Indian Constitution.

The Court has yet not decided the case and the case is still pending.

The mediaeval ecclesiastical law of England did not consider desertion a matrimonial relief. It provided for the remedy of restitution of conjugal rights. This remedy was not available in British common law, and the British Law Commission, presided over by Mr. Justice Scarman on July 9, 1969, suggested the abolition of the uncivilised remedy of restitution. The British parliament accepted the suggestion given by the commission and enacted Section 20 of the Matrimonial Proceedings and Property Act, 1970, through which it abolished the restitution of conjugal rights.

Conclusion

The provision of restitution of conjugal rights under Section 9 of the Hindu Marriage Act has been subjected to many criticism and legal problems. But at the same time, many judgements were pronounced in support of Section 9 of the Hindu Marriage Act, 1955 since the provision aims to protect the sanctity of marriage and helps in the continuity of marriage by mandating cohabitation. This Section will come into play when one spouse decides to withdraw from the marriage without any reasonable cause. During such an instance, the other spouse can file a petition with the court under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. This article gives a detailed explanation of how the restitution of conjugal rights commences and its procedure. Also, many judgements were referred to highlight the importance of Section 9 of the Hindu Marriage Act, even though there was lots of debate between Section 9 and Article 21 of the Indian Constitution in accordance with the violation of the privacy of the individual. But these critics were overruled by stating that the restitution of conjugal rights aims to protect the marriage from breakage for small reasons, so in such instances, the state’s duty is to protect the institution of marriage. Analysing both the chances of this remedy is important to understand whether it is beneficial for the public or not. According to Indian culture, a couple should try hard to get along with each other and make their relationship work. This Section provides these cultures with legal backing but on the other side it forces two individuals to live together who do not want to live with each other, and a relationship that is made with force has no future. 

The Court has yet to decide the constitutionality of Section 9 under the Ojaswa case. It is expected that the Hon’ble Court would come to a decision that would be in the interest of the public and will also have an essence of Indian culture. 

References

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