Restitution of Conjugal Rights

About this topic

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Restitution of conjugal rights is the remedy by which one spouse asks the court for an order sending the other spouse back home. It is found in Section 9 of the Hindu Marriage Act, 1955.

Meaning of restitution of conjugal rights

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• Conjugal means relating to marriage, or to husband and wife in their relations to each other.
• Restitution means giving back.

An unusual remedy

Every other matrimonial remedy in the Act moves the spouses apart. Section 9 alone moves in the opposite direction: it asks the court to bring the couple back together.

The Rule: Section 9 of the Hindu Marriage Act, 1955

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"When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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."

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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society."

Who may apply, and where

• Either spouse can apply. The "aggrieved party" is simply the spouse who has been left.
• The petition goes to the district court, or, where one has been set up under the Family Courts Act, 1984, to the Family Court.

Fact 1: Withdrawal from the society of the other spouse

• "Society" here does not mean the public. It means married companionship: a shared home and a shared life.
• Withdrawal is not measured in kilometres. It means pulling out of the marital relationship itself.
• A couple who still live together as one household have not withdrawn from each other, however troubled they may be.

Fact 2: Without reasonable excuse

• If the spouse who left had a good reason, the court will not order a return. Examples of reasonable excuse: cruelty, persistent dowry demands, or the other spouse's relationship with someone else.
• Burden of proof (Explanation to Section 9): the petitioner shows the withdrawal; the spouse who left must then prove the reasonable excuse.
• This allocation is sensible, because the reasons for leaving are best known to the person who left.

The two filters applied by the court

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Filter 1: Proof of the statements in the petition

• The court must be satisfied that the statements in the petition are true.
• Section 23(1) applies this requirement to every proceeding under the Act, "whether defended or not".
• So even if the respondent never appears, the decree is not granted as a formality.

Filter 2: No legal ground against the relief (Section 23)

Section 23 gives this filter its shape. The court must be satisfied that:

1. the petitioner is not "in any way taking advantage of his or her own wrong or disability";
2. the petition is not "presented or prosecuted in collusion with the respondent";
3. there has not been "any unnecessary or improper delay in instituting the proceeding"; and
4. there is "no other legal ground why relief should not be granted".

Section 23A: defence and counter-claim by the respondent

• In a restitution case, the respondent may oppose the relief on the ground of the petitioner's adultery, cruelty or desertion.
• The respondent may even make a counter-claim for any relief under the Act on that ground.

Decree once every filter is passed

Only when every filter is passed does Section 23 say that the court "shall decree such relief accordingly".

Duty to attempt reconciliation: Section 23(2)

Before granting any decree, the court must first try to heal the marriage. Section 23(2) makes it the duty of the court, before granting any relief, "in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties".

• The proviso to Section 23(2) excludes only certain divorce grounds from this duty.
• It never excludes a petition for restitution, so the reconciliation duty applies to a Section 9 petition.

Summary of the requirements

The Refusal: enforcing a decree for restitution

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Suppose the decree is passed and the spouse still stays away. The decree is made under Section 9, but it is enforced through another route.

Section 28A of the Hindu Marriage Act

"All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction for the time being are enforced."

This leads to the Code of Civil Procedure, 1908, and to Order 21, Rule 32.

Order 21, Rule 32: attachment of property

• Sub-rule (1): where the party against whom a decree for restitution of conjugal rights has been passed "has had an opportunity of obeying the decree and has wilfully failed to obey it", the decree may be enforced "by the attachment of his property".
• Sale: if the attachment has remained in force for six months, the decree is still not obeyed, and the decree-holder has applied for sale, the attached property may be sold.
• Compensation: out of the sale proceeds, the court may award the decree-holder such compensation as it thinks fit. The balance goes back to the judgment-debtor on his application.
• End of attachment: the attachment ends if the decree is obeyed and the costs are paid, or if six months pass from the attachment without a successful application for sale.

Order 21, Rule 33: periodical payments where the decree is against a husband

• At the time of the decree or later, the court may order that if the husband does not obey within a fixed period, he must make such periodical payments to the wife as may be just.
• The court may require him to secure those payments.
• The court can later vary, suspend or revive that order.
• The money is recoverable as if it were payable under a money decree.

Divorce after non-compliance: Section 13(1A)

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There is also a consequence inside the Act itself. Section 13(1A) reads:

"Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground ... that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties."

• The quoted ground is the second clause of Section 13(1A).
• Note the words "either party". Since an amendment in 1964, even the spouse who disobeyed the decree can use this ground.
• So a decree that fails to reunite a couple for one year opens the door to divorce.

The Review: constitutional validity of Section 9

The constitutional question: can the State tell an adult to return to a spouse, and attach his or her property for refusing? The Supreme Court answered it in 1984, choosing between two High Courts that had reached opposite conclusions within months.

T. Sareetha v. T. Venkata Subbaiah (Andhra Pradesh High Court, 1983)

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Facts

• Sareetha was a well-known film actress of the South Indian screen.
• She was married in December 1975, while still a high school student of about sixteen. The couple separated almost immediately.
• In 1981, the husband filed a petition under Section 9 at Kadapa.
• She objected to that court's jurisdiction and lost on that point.
• In the High Court she raised a far larger argument: that Section 9 itself violated Articles 14, 19 and 21 of the Constitution.

Reasoning on Article 21

Justice P. A. Choudary agreed with her, resting the decision mainly on Articles 21 and 14.

• Sexual cohabitation is an inseparable part of a decree for restitution.
• Backed by financial sanctions, the decree pushes an unwilling person into sexual relations. Nothing could be more degrading to human dignity.
• For a wife the effect is graver still: the choice whether, when and how her body should bear a child would be taken out of her hands.
• He called the remedy "a savage and barbarous remedy", violating the right to privacy and human dignity.
• State coercion can neither preserve a marriage nor clear misunderstandings.
• The decree's only practical use was as evidence for a later divorce.

Historical point

• Ancient Hindu law never compelled a wife through the courts.
• The remedy came from the old church law of England during British rule.
• England itself abolished the remedy in 1970.

Reasoning on Article 14

• The judge admitted that Section 9 is equal in form, since both spouses can use it.
• Relying on the Supreme Court, he said that "bare equality of treatment regardless of the inequality of realities is neither justice nor homage to the constitutional principle".
• In real life, husbands used the remedy almost exclusively, and a forced return could change a wife's life far more than a husband's.
• So Section 9 worked in practice "as an engine of oppression".
• It also served no legitimate public purpose.

Result

Section 9 was declared null and void, and the Kadapa court was stopped from trying the petition.

Harvinder Kaur v. Harmander Singh Choudhry (Delhi High Court)

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Facts

• The spouses were both working. They married in 1976, and in 1978 the wife left.
• The husband won a decree under Section 9.
• In her appeal, the wife relied on the Andhra Pradesh judgment to challenge the validity of Section 9.

Cohabitation and consortium, not sex

The court's central point was that the decree aims at cohabitation and consortium, not merely at sexual intercourse.

• Courts do not and cannot enforce sexual intercourse.
• If a couple live under one roof but one spouse refuses sexual relations, no decree for restitution can be passed, because they are still living as one household.
• In the court's view, the Andhra Pradesh judgment had placed "a disproportionate emphasis on sex, almost bordering on obsession".

Object of Section 9: preservation of marriage

• The court described the leading idea of Section 9 as the preservation of marriage.
• It treated Section 9 as an extension of the reconciliation duty in Section 23.

Link with Section 13(1A): a cooling-off period

• The year after the decree works as a cooling-off period.
• If the spouses reunite, the marriage survives. If not, the decree becomes a stepping stone to divorce.
• Because even the defaulting spouse can seek divorce under Section 13(1A), the court found complete equality between the sexes, and no breach of Article 14.

Decision on the facts: the separate-home condition

• The wife had offered to return only if her husband set up a separate home, away from his parents.
• The court held that neither spouse holds the casting vote on such a question; it must be settled by both together.
• Having failed to prove a reasonable excuse, she lost her appeal.

The "bull in a china shop" remark

Justice Rohatgi wrote that introducing constitutional law into the home is like introducing a bull in a china shop, and that in the privacy of the home and married life, neither Article 21 nor Article 14 has any place.

Saroj Rani v. Sudarshan Kumar Chadha (Supreme Court, 1984)

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Facts

• The couple married at Jalandhar in 1975 and had two daughters.
• The wife said that in May 1977 her husband turned her out, and she petitioned for restitution.
• The husband denied her allegations, but then told the court that the decree could be passed. A consent decree followed in March 1978.
• They never lived together after that. In April 1979 the husband sought divorce under Section 13(1A).
• The District Judge refused divorce, but the Punjab and Haryana High Court granted it.

The wife's arguments in the Supreme Court

1. Trap / own wrong: her husband had agreed to the decree only to use it later for divorce, and so he was taking advantage of his own wrong.
2. Unconstitutionality: relying on the Andhra Pradesh judgment, Section 9 was unconstitutional.

Both arguments failed.

Held on the divorce

• Consent decrees in matrimonial matters are not collusive in themselves.
• The trap theory had never been pleaded, and it contradicted her own earlier case that she had lived with him for two days after the decree.
• Following its earlier view, the Court held that a mere refusal to resume cohabitation is not the kind of wrong that bars divorce. It must be misconduct serious enough to justify refusing relief, such as actually ill-treating the wife and driving her out.
• Since this marriage had plainly broken down, it was better to close the chapter.

Held on the validity of Section 9

The Court preferred the Delhi view and overruled the Andhra Pradesh judgment, for three reasons:

1. The right of each spouse to the society of the other is not merely a creation of statute. It is inherent in the very institution of marriage, and Section 9 only codifies pre-existing law.
2. There are sufficient safeguards in Section 9 to prevent it from being a tyranny.
3. The only sanction is attachment of property, and only for wilful disobedience. That sanction is an inducement for the spouses to live together and settle their dispute amicably, so it serves a social purpose as an aid to preventing the break-up of marriage.

Understood this way, Section 9 violates neither Article 14 nor Article 21.

Protection for the wife

The Court directed the husband to keep maintaining the wife until she remarried, and to maintain their surviving daughter.

The three judgments at a glance

The Reality: Section 9 today

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Section 9 stands, and Saroj Rani is the binding law. But a restitution decree often collides with the law of maintenance.

Maintenance under Section 144 of the B.N.S.S., 2023

• A Magistrate of the first class may order a person with sufficient means who neglects or refuses to maintain his wife, who is unable to maintain herself, to pay her a monthly allowance.
• The provision also covers children and parents.

Section 144(4) says:

"No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."

An Explanation in Section 144(3) adds:

"If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him."

Does a wife who ignores a restitution decree lose maintenance?

A fresh constitutional challenge

• Relying on the right to privacy, a fresh challenge was filed in the Supreme Court in 2019.
• It attacks Section 9 of the Hindu Marriage Act, the matching Section 22 of the Special Marriage Act, 1954, and Rules 32 and 33 of Order 21 of the Code of Civil Procedure.
• Until it succeeds, Section 9 remains valid law.

Applying the law: the three problems

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Quick revision

• Section 9 of the Hindu Marriage Act, 1955 is the only matrimonial remedy that brings spouses together; either spouse may petition the district court or Family Court.
• Withdrawal means pulling out of the marital relationship, not physical distance; a couple who still live together as one household have not withdrawn from each other.
• The burden of proving a reasonable excuse lies on the spouse who withdrew (Explanation to Section 9).
• A petitioner cannot take advantage of his or her own wrong (Section 23); a secret second marriage gives the other spouse a reasonable excuse.
• Enforcement is only by attachment of property (Order 21, Rule 32) and, against a husband, periodical payments (Order 21, Rule 33); never by prison.
• After one year or more without restitution following the decree, either party may seek divorce (Section 13(1A)).
• A husband's marriage with another woman is just ground for his wife's refusal to live with him (Explanation in Section 144(3) of the B.N.S.S.).
• The spirit of Section 9: an invitation to come home, backed by a price, never a pair of handcuffs.
• Saroj Rani v. Sudarshan Kumar Chadha (1984) upheld Section 9 and overruled T. Sareetha; a fresh privacy-based challenge filed in 2019 is still to be decided.