Restitution of conjugal rights section 9

Theoretical overview

It is the basic requisite of marriage that the husband and wife should live together and respect each other’s mutual rights. Both have some mutual obligation against each other which cannot be ignored in any way. This is a distinctive feature of conjugal rights. In no other right, right to society exist.

Conjugal rights include–

1. Right of the couple to have each other’s society
2. The right to marital intercourse

The term conjugal means matrimonial, it refers to the relationship between a married couple. One spouse is entitled to the society, comfort and consortium of each other. The expression means Restoration of conjugal rights. It is the first remedy that the court passes as the main aim of Hindu Marriage Act 1956 is to save the sacred relation of marriage. 

The degree is issued under order XXI rule 32 of C.P.C.

Section 9 of Hindu Marriage Act states that – ¹ ** * When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.

• ²[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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]  

Four conditions for restitution of conjugal rights are-

1. One spouse has withdrawn from the society of other
2. There is no reasonable excuse (the burden of proof lies on the person who has left the society)
3. Court’s satisfaction as to the truth of the statement
4. No legal ground exists for refusing the degree

Limitations of restitution of conjugal rights

– The offended spouse must wait for a year even if they reject the decree of restitution of conjugal rights.

– Alternatively, the divorce petition cannot be filed with the petition for the return of conjugal rights (RCR). These prayers are thought to be mutually destructive of one another and must thus be said after the previous one fails.

Constitutional validity of section 9

Andhra Pradesh high court in the case  T. Saritha Vengata Subbiah v. State, AIR 1983 AP 356 held that this section is violative of art. 21, 19 & 14 of the Indian constitution and called it uncivilized and barbarous. They reasoned that sexual intercourse, which was an integral part of conjugal rights was violative of art 21 as an individual has an autonomy over his own body.

Later, in Harvinder Kaur v. Harmander Singh, AIR 1984 Delhi 66 , Delhi high court upheld its constitutionality. They said that cohabitation does not only mean sexual intercourse & there is nothing barbarous and coercive in it.  He also named it a “litmus test” for the divorce.

Again, in Saroj Rani v. S.K. Chadha, AIR 1984 SC 1562, the court agreed with the judgement given in the previous case. It also stated that attachment of properties for disobedience is just an inducement for the parties to live together.

Relevant sections

Section 9 in The Hindu Marriage Act, 1955

9 Restitution of conjugal rights. – 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. ⁸ [ 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.]

Important case laws

1. It was held by the court in the case of Sushila Bai v. Prem Narain Rai[4] that a husband leaving his wife in her father’s home and not maintaining any connection with her thereafter, would be considered as withdrawing from her society and the decree of restitution shall be passed.
2. In another case of sR. Natarjan v. Sujatha Vasudevan, the court held that if a wife is asking to live separately from husband’s aged parents, it does not amount to a reasonable excuse of withdrawal and the wife can be granted a decree for restitution of conjugal rights.
3. Andhra Pradesh high court in the case  T. Saritha Vengata Subbiah v. State, AIR 1983 AP 356 held that this section is violative of art. 21, 19 & 14 of the Indian constitution and called it uncivilized and barbarous. They reasoned that sexual intercourse, which was an integral part of conjugal rights was violative of art 21 as an individual has an autonomy over his own body.
4. Harvinder Kaur v. Harmander Singh, AIR 1984 Delhi 66 , Delhi high court upheld its constitutionality. They said that cohabitation does not only mean sexual intercourse & there is nothing barbarous and coercive in it.  He also named it a “litmus test” for the divorce.
5. Saroj Rani v. S.K. Chadha, AIR 1984 SC 1562, the court agreed with the judgement given in the previous case. It also stated that attachment of properties for disobedience is just an inducement for the parties to live together.

Points to remember

• It is the basic requisite of marriage that the husband and wife should live together and respect each other’s mutual rights
• One spouse is entitled to the society, comfort and consortium of each other
• The degree of restitution of conjugal rights is issued under order XXI rule 32 of C.P.C.