This article on the topic of conjugal rights is written by Simmi Chadda.
Marriage is administered by Personal laws which administer the terms like divorce, maintenance, custody and restitution of conjugal rights.
Conjugal Rights mean Right to stay together.
Hindu Marriage Act, 1955 (Section 9) says If either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights.
Section 9 is to save marriage.
The term Conjugal Rights could be placed against any of the spouses guilty of staying away from the other party without a proper reason. If the suit succeeds then the couple would be needed to stay together.
The decree of restitution of conjugal rights cannot be actioned by forcefully making the party who has gone away from the society from the other party to live with the one who sets petition for restitution.
There are three important requisites to be fulfilled for Section 9
- Spouses must not be staying together.
- Withdrawal of a party from the other must have no reasonable ground for such withdrawal.
- The aggrieved party must apply for restitution of conjugal rights.
Basis on which petition for Restitution of Conjugal Rights can be rejected
- If the respondent is capable of claiming any matrimonial relief.
- If the petitioner accepts that he has committed any matrimonial misconduct.
- If the petitioner’s action makes it impossible for the respondent to stay with him.
Onus under Section 9 of Hindu Marriage Act
Primarily, the petitioner has the burden to prove that the respondent has left him. When the petitioner successfully proves this, the burden shifts to the respondent to prove there is a reasonable ground to support as to why the respondent went away from the petitioner’s society./
Where to complaint on this?
In the Civil Court in whose jurisdiction –
- The parties’ marriage was performed.
- The husband and wife stay together.
- The husband and wife last stayed.
What the aggrieved party can do?
The aggrieved party can file a petition in the district court. When the court gets satisfied with the aggrieved party’s contentions and when the court finds no reason as to why the aggrieved’s application should not be supported, the court may decree restitution of conjugal rights in the aggrieved party’s favor.
What can be the next step?
The decree of restitution of conjugal rights will be actioned according to the Civil Procedure Code, 1908.
The aggrieved party can approach the High Court challenging the lower court’s decision.
During this period whether the wife can ask for maintenance?
Yes; the wife can claim maintenance under Section 25 of Hindu Marriage Act. This decree, if not obeyed, the court will attach the judgment-debtor’s properties. Further, if this decree is not observed for a time frame of more than a year, after the decree date then the divorce ground is created.
In India, Marriage is considered as a most sacred ceremony. Parties to marriage carry loads of hopes and dreams relating to their life after marriage and their happiness. But many times things don’t work out as thought and thus parties find disagreements and quarrels between them, making them decide to go for divorce. When one of the spouses feels that there was nothing wrong but just some silly matters that spouse files an application for Restitution of Conjugal Rights in order to start a new start.
The aid of Restitution of Conjugal Rights necessities both marriage parties to live together and cohabit. But this measure has also been misused many times, disturbing the Right to Life, Right to Privacy and the Right to Equality and therefore Unconstitutional.
Many people use this measure to threaten their spouse so that their spouse will take their case back or will agree to accept the unacceptable monetary losses.
This is a highly debatable subject. Some feel it is to preserve the marriage while some say that there is no meaning in forcing the other party to stay with the aggrieved party as they are not at all interested. It is very important to note that this remedy is not being misused.
Consult a good to file for restitution of conjugal rights.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: