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Restitution of Conjugal Right under Section 9 on Hindu Marriage Act 1955

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According to the Section 9 of Hindu Marriage Act 1955,”When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.”

Introduction 

Where a spouse withdraws from the society of the other without reasonable cause, the aggrieved party may apply to the District court for a decree of restitution of conjugal rights. The court looks to the truth of the statement made, the validity of the reasons tendered and also to whether there are any other grounds to reject the application. If it finds satisfactory answers to the above, it gives a decree.If a spouse is suffering from incurable or infectious diseases, the court will not issue a decree for restitution.

Scope of Decree

The decree given by the court is merely, i-detective to the parties to realize their duties and responsibility towards each other.   

Historical background 

The remedy of the restitution of conjugal rights originated from Jewish Law. The remedy of the restitution of conjugal rights was unknown to India until the British introduced. After Indian independence, the remedy of the restitution of conjugal rights is available in Indian laws. But this remedy was opposed by many leaders in India.

This remedy was opposed by:-

  • Khardekar the former Member of Parliament opposed the restitution of conjugal right
  • Brombley, an author has opposed the restitution of conjugal right. 
  • Vehemently also opposed the remedy and held that remedy was not genuine.

The restitution of conjugal rights was introduced in India in Moonshe Buzloor Ruheem vs. Shumsoonissa Begum.

Essential Conditions under Section 9

  • One party must have withdrawn from the society of the other. 
  • The withdrawal must be without any reasonable reason.
  • The aggrieved party applies for the restitution of conjugal rights. 

Once these conditions are fulfilled, the district court may decree restitution of conjugal rights to bring about cohabitation between the estranged parties.If the aggrieved party is unable to convince the district court and it founds that the petitioner is guilty then the decree of restitution of conjugal rights is not granted. An added advantage from this is that if the parties are not following the decree for cohabitation after the passing of the decree, continuously for one year, it becomes a ground for divorce under Section 13(1-A)(ii).

Constitutional Validity of Section9

The constitutional validity of section 9 under Hindu Marriage Act, 1955, was first challenged in the case T. Sareetha v. T. Ventake Subbaiah, on the ground of being violation of rights guaranteed under article 14,19 and 21 of Indian Constitution. It was held that section 9 was void as it violates the human dignity and privacy of a person,that sexual cohabitation is enforced because of this remedy which ultimately violates one’s freedom to expression under Article 19.

However, this decision was overruled in the case  Saroj rani v. Sudarshan Kumar Chadha. It was observed by the court that the right of a husband or wife to the society of the other is not only a creature of statute but also inherent in every institute of marriage and upheld the constitutionality of Section 9. This remedy is an aid to prevent the breakup of a marriage and also that the requirement of “Reasonable Excuse” within Section 9 ensures that this remedy cannot be misused.

Conclusion 

Marriage is a legal union between a man and a woman as husband and wife . It is a relation between them till the law of life or till they get divorced. One of the most important matrimonail remedies is the restitution of conjugal rights. Once married, the husband and the wife are entitled as a matter of right to the enjoyment of each other’s society, comfort and affection. The idea of providing restitution  is to preserve the marriage marriage tie as far as possible by enabling the court ot intervene and compel the withdrawing party to join the other, provided certain conditions are satisfied.

References

  • Hindu law (MS RAMA ROA)
  • Bare Act (Hindu Marriage Act, 1955)
  • indiankanoon.org

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