The Hindu Law is based on the notion that husband and wife become one after marriage. Since times immemorial, the fulfillment of marital obligations and cohabitation by both the parties to the marriage was considered quintessential for a healthy family living but in changing times with modernization in thoughts and actions, cohabitation has become rather a choice or a mere obligation. Though considered a relic of the British era, the provision restitution of conjugal rights has seen many developments and a great amount of jurisprudence has been developed about the same. This article aims at studying the provision of restitution of conjugal rights under the Hindu law and traces its origin, jurisprudence, working, and current status.
Marriage under all matrimonial laws imposes certain conjugal obligations and provides everyone with certain legal rights in marriage. A vital requirement or implication of marriage is that the parties would cohabit with each other. Every spouse is qualified for the consortium of the other. After the solemnization of marriage, the married couple is legally bound by law to maintain their conjugal life together. In case either of the companions withdraws from the company of the other, at that point the afflicted party may obtain a statutory matrimonial relief ensured under the codified matrimonial law to re-establish their status of the other subject for approval of specific realities and facts. This can be done by filing a petition in court seeking resumption of cohabitation. This right is known as the Restitution of Conjugal rights.
“The word ‘restitution’ in its etymological sense means restoring to a party on the modification, variation, or reversal of a decree what has been lost to him in the execution of the decree or direct consequence of the decree. ‘Conjugal’ is derived from the French word ‘conjugate’ which means to join or to unite in marriage. Conjugal means a relationship between a married couple. Conjugal rights are not merely a creature of statute but are inherent in the very institution of marriage itself.”
The restitution of conjugal rights has neither been recognized in Hindu Dharmashastras nor under Muslim law. It was brought to India by the British. The English law in this regard was inspired by Jewish law. “Restitution of conjugal rights has its roots in feudal England, where the marriage was considered a property deal and wife was part of man’s possession like other chattels” and so, the law is often considered anachronistic and unsuited for Indian conditions. The concept of restitution of conjugal rights was introduced in India through the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum in 1867, where such actions were regarded as considerations for specific performance.
Provision and Procedure
‘Section 9 of the Hindu Marriage Act, 1955 enshrines that when either the husband or the wife, without reasonable excuse, withdraws from the society of the other, the aggrieved party may apply for restitution of conjugal rights at their will. He can file a petition to the district court and if satisfied with the veracity of the statements made in the petition and no legal ground exists in respect of the denial of the submission, the district judge may pass a decree of restitution of conjugal rights.
After the filing of the petition, a copy of the petition will be sent to the other party along with the hearing date; thereafter both the parties should appear before the court on the mentioned dates and will be sent for counselling sessions by the court. Typically, the court suggests three meetings at regular intervals of 20 days between meetings which proceeds for about 4 months. The judge then finally passes a decree depending on the statement provided by the parties and on the counselling held.
In the Sushila Bai v. Prem Narayan, the court passed an order of restitution of conjugal rights and ordained certain circumstances that could qualify for valid defences in a suit for restitution of conjugal rights.
- The respondent can claim a matrimonial relief against the suit.
- The facts shown are proven that the petitioner is guilty of misconduct.
- Due to certain acts or omissions, it becomes impossible for spouses to live together.’
Only under these conditions, the suit for restitution of conjugal rights is invalidated and the court gives a decree for a judicial separation
The acts or omissions as observed above must be of a grave nature which may include acts or omissions that:
- Affects the health of the spouse
- Disturbs the spouse’s peace of mind
- Proves the bad character of the spouse
- Leads to neglection of the spouse
They may also include reasons such as the husband being a drunkard or a non-vegetarian, hating or insulting the spouse, or taunting the wife constantly for dowry.
Execution of Decree of Restitution of Conjugal Rights
When any spouse obtains a decree from a trial court, his/her next step is to get the decree satisfied by filling its execution petition before the trial court. Execution is the proceeding by which Decree Holder moves to the trial court for the satisfaction of decree is called execution. Execution empowers the decree-holder to recover the decretal amount of relief granted under the decree from the judgment debtor.
Order XXI Rule 32 of the Code of Civil Procedure deals with the execution of a decree passed for restitution of conjugal rights which reads as follows:
“Where the party against whom a decree for the specific performance of a contract, or restitution of conjugal rights, or an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced the case of decree for restitution of conjugal rights by: –
- By the attachment of property, or
- in case of a decree for specific performance or an injunction by his detention in Civil Prison, or
- by the attachment of his property, or by both
Non-compliance with the order of Restitution of Conjugal Rights
Even if a decree for restitution of conjugal rights has been executed, the decree-holder cannot compel the judgment to resume cohabitation with him/her. The only remedy available to the decree-holder is that he/she can file a petition for divorce if the spouse does not return or resume cohabitation even after an interval of one year of the authorising of the restitution decree. Non-compliance with the order of restitution would qualify as a ground for contempt of court whatsoever. Non-compliance with the order can only be a cause for divorce.
Under Sec. 13(1A)(ii) of the Hindu Marriage Act, “either party to the marriage may present a petition for divorce on the ground that there has been no resumption of cohabitation for a period of not less than one year after the passing of a decree to that effect”. The court before rendering a decree for divorce on the ground may be satisfied that the petitioner is not disentitled to such a decree by way of any bar outlined in Sec. 23 of the Act. After a decree for restitution of conjugal rights has been acquired by the spouse under Sec. 9 of the Act, the spouse is not qualified for seeking relief under Sec. 13(1A) of the Act in case he neglects to conform to the decree and acts woefully by maltreating her or ousting her away from home. However, there are contradictory views on the question of application of Sec. 23(1)(a) of the Act.
Constitutionality of the Provision
The main contention regarding the constitutionality of the provision of restitution of conjugal revolved around the violation of the right to privacy (Art. 21), infringement of freedom of association, or union [Art. 19(1)(c)] and infringement of the freedom to settle and practice any profession.
Concerning the issue of privacy, even though the Constitution does not explicitly proclaim the right to privacy as a fundamental right, the said right is a quintessential element of individual freedom. Any right to privacy must include and ensure the personal intimacies of home, family, marriage, parenthood, procreation, and raising of offspring. In T. Saritha Venkata Subbiah, section 9 of the Hindu Marriage Act relating to restitution of conjugal rights was held unconstitutional because this decree clearly deprives the wife of her privacy by compelling her to live with her husband against her wishes. But in Harvinder Kaur v. Harmander Singh, section 9 of the Hindu Marriage Act was held as valid. This view was upheld in Saroj Rani v. S.K. Chadha. The court held that in the privacy of home and married life, neither article 21 nor article 14 has any place. The idea of the right to privacy was although understood in its entirety through the case of K.S. Puttuswamy v. UOI.
While there is sufficient clarity over the fact whether the provision is against the right to privacy, there is opacity regarding the provision violating Article 19 though as per scholars the provision of restitution of conjugal rights does violate Article 19.
By the decree under section 9, a wife is compelled by the court to have an association with her husband against her will and vice versa. In Huhhram v. Misri Bai, the wife protested in the court that her father in law has an evil eye on her and her spouse harassed her. Despite this, in light of the husband’s case for a restitution decree, the court pronounced the judgment in favour of the husband and granted him a decree for restitution of conjugal rights.
In the case of Atma Ram v. Narbada Devi, the husband contended that he does want to resume cohabitation with his wife but the decree for restitution of conjugal rights was passed to the advantage of the wife, turning a blind eye towards the husband’s pleadings. It is a clean-cut example of obligatory and compelled union brought about by a restitution decree.” In both of the aforementioned cases, a clear violation of freedom of association is observed.
Keeping in view the current social framework where women have proved to be equal to men in all fields especially at the work-front, a mere refusal of the wife to quit her job at the instance of the husband does not qualify as a sufficient ground for granting a decree of restitution in favour of the husband. In Swaraj Garg v. K.M. Garg, infringement of Article 19(1)(e) and (g) was not be sought but the court refused the decree on social grounds and the rationale behind the same was that the wife had a reasonable excuse of being subject to cruelty and constant disparagement by her husband. Additionally, the husband was undergoing a financial turmoil and was not in a stable position while on the other hand, the wife was in a comfortable position at her place of work and could earn a decent living.
Maintenance under Restitution of Conjugal Rights
Apart from the implementation of restitution of conjugal rights, Section 9 of the Hindu Marriage Act, 1955, provides for an opportunity to the petitioner to seek maintenance under Section 25 of the Act. Such maintenance can also be claimed in cases where the action concerning maintenance under Section 25 remains pending. Hence, a wife who refutes the disruption of a marriage can get maintenance from her husband within the ambit of the aforementioned provision of law. The husband can also claim maintenance from his wife through this provision since the said provision happens to be gender-neutral.
In the case of Seema v. Rakesh Kumar, the Supreme Court held that for a claim of the decree of restitution of conjugal rights, the petitioner is entitled to receive maintenance from the husband if they are living with each other and the wife is unable to live a decent life on her own.
Transfer of cases
Section 8 of the Hindu Marriage Act gives the High Court an abrogating capacity to move a suit or any proceedings initiated under the Act from the court of one District Judge to some other District Judge contained by the jurisdictional and territorial constraints of the High Court. The transferee court must not essentially have territorial jurisdiction to preside over the moved proceedings or suit. The only constraint is that the court to which the suit is transferred must be a principal civil court of original jurisdiction falling within the meaning of Section 3(b) of the Act. This power is not limited and is exercisable even by a District Judge under Section 24 CPC. In the case of Mabel Treeza Pinto v. Francis Pinto, the High Court made an error in rejecting the application for transfer on account of its incapacity to transfer a proceeding from Mangalore to Bangalore. It was held later that the power of transferring proceedings is not restricted to transfer of proceedings to a District Judge only, but implies the power of transferring proceedings from the court of one District Judge to the court of another District Judge within the jurisdiction of the High Court.
Striking down of the provision of Restitution of Conjugal Rights
In January 2020, a Supreme Court bench asked for a reply from the Attorney General, regarding a plea to strike down the provision of restitution of conjugal rights. Since the petition has been filed and reference has been sought, there is a probability that the provision may be quashed. However, the issue remains pending for further deliberation by the Apex Court. It shall certainly be a breakthrough in the history of personal laws if the provision in question is quashed.
In a nutshell, restitution of conjugal rights is considered a positive remedy in the Hindu Law which ensures consortium and restoration of cohabitation between the husband and the wife. Over time, questions regarding its validity in the Indian society and consonance with the constitution arose. The provision entails grounds for seeking restitution of conjugal rights, the burden of proof, maintenance to the wife, etc. Execution of the decree is done as per Order XXI Rule 32 of CPC. The jurisprudence developed over the provision brings out the extent to which courts can interfere or decide upon family matters and in what ways.
Frequently Asked Questions
- What are the remedies available to the parties under the Hindu Marriage Act, 1955?
Answer: The 3 matrimonial remedies accessible to parties in a marriage are restitution of conjugal rights, judicial separation, and divorce. The judiciary in India is insistent on considering ‘irretrievable breakdown of marriage’ as an exclusive cause for divorce. Even if, the petition is presented before the court, the option of conciliation is always available to the parties.
2. What are the limitations of the provision for restitution of conjugal rights?
Answer: Indeed, even on the refusal of the passage of a decree concerning the restitution of conjugal rights, the afflicted party needs to hold on for another year for availing other matrimonial remedies. A petition for divorce cannot be filed simultaneously with a petition for restitution of conjugal rights. It is deemed that these pleas are in mutual contradiction of each other and therefore, they must be filled after the closure or failure of the previous one.
3. What are the documents required for restitution of conjugal rights?
i. Address proof of the petitioner
ii. Identity proof of the petitioner
iii. Proof of marriage
iv. Photo of the petitioner
v. Any document to confirm the jurisdiction of the court.
 1 B.M. Gandhi, Family Law 165 (2 ed. EBC 2019).
 supra note at 1.
 Sushila Bai v. Prem Narayan AIR 1986 MP 225
 Code of Civil Procedure, 1908 Order XXI Rule 32.
 T. Saritha v. T. Venkata Subbaiah AIR 1983 AP 356.
 Harvinder Kaur v. Harmander Singh AIR 1984 Del 66.
 Saroj Rani v. S.K. Chadha (1984) 4 SCC 90.
 K.S. Puttuswamy v. Union of India (2017) 10 SCC 1.
 Huhhram v. Misri Bai AIR 1979 MP 144.
 Atma Ram v. Narbada Devi AIR 1980 Raj 35.
 supra note at 10.
 Swaraj Garg v. K.M. Garg AIR 1978 Del 296.
 Seema v. Rakesh Kumar (2000) 9 SCC 271.
 supra note at 5.
 Mabel Treeza Pinto v. Francis Pinto (2005) 7 SCC 761.