Introduction
Marriage contains a traditional value and it is regarded as a pious relationship between two persons. The relationship between two persons gives rise to other more relations, obligations, rights and duties. This pious relationship contains supporting each other in hard times, it is not a connection of two persons rather it connects two families together for life. Because of this, the hon’ble court of India considers it a serious relationship which should not get ended without a reasonable cause.
But, if the spouse abscond another without any reasonable cause, then the aggrieved party can go to the doors of the court for the remedy which is “Restitution of Conjugal Rights.” This means right to stay together. A deserted spouse can approach the court for restitution of conjugal rights against other. Restitution of conjugal rights, Judicial separation and divorce are the three matrimonial remedies available in the court of law.
Section 9 of the Hindu Marriage Act, 1955
As per Section-9 of the Hindu Marriage Act, 1955 restitution of conjugal rights means when either the husband or the wife leaves one party without any reasonable cause, the aggrieved then file a petition in the district court for the restitution of conjugal rights and after finding the statements to be true, the court then pass the decree of restitution of conjugal rights accordingly. But, if there is a reasonable ground of moving the spouse from another, there will be no ground for the decree of restitution of conjugal rights.
Also, whenever the question arises that whether there was a reasonable cause for withdrawing the spouse from the society of another, the burden of proof lies upon the party who has withdrawn from the society.
The Decree for Restitution of Conjugal Rights issued under Order XXI Rule 32 of C.P.C. restitution of conjugal rights is a marriage saving clause wherein if it has been found that the withdrawal was without any reasonable cause, the court orders the party to come back live with the spouse peacefully. This remedy was earlier applied in England and now in India. It has been first implemented by the privy council of India through the case of Moonshee Bazloor v. Shamsoonaissa Begu.
Three conditions which needs to be fulfilled for this Decree:
Spouse has withdrawn from the society: The spouse should have withdrawn from the society of the petitioner. That means permanently or indefinitely abandoning the relationship.
But, if husband and wife are maintaining a social or conjugal relation by living away from each other, then this will not constitute the decree.
No reasonable excuse: The desertion should be without any reasonable cause. One should leave other by not giving the cause. But if, one left the other spouse by saying he/she cannot resign from the job and have to go there, this will again not constitute a valid ground for the restitution of conjugal right’s Decree.
Petition for restitution of conjugal rights: It is mandatory that there should be a petition filed in the court of law asking for the matrimonial remedy of Restitution of Conjugal Rights.
Constitutional Validity of Section-9
Restitution of conjugal rights clearly violates Right to privacy of a wife as she can be forced to live with the spouse against her wish. Though in the case of Kharak Singh vs. State of UP Right to privacy was held to be an ingredient of personal liberty. In T Sareetha vs. Venkatta Subbaiah Andhra Pradesh HC regarded section-9 of HMA as uncivilized and unconstitutional as it violates Article 19, 21, 14. But in the case of Harvinder Kaur vs. Harmander Singh the Delhi HC held this section-9 as valid again by going to the original approach. Lastly, in the case of Saroj Rani vs. Sudesrshan Kumar, SC agreed to the Harmander Singh’s case and held this section as valid.
Limitations of Restitution of Conjugal Rights
After having the matrimonial decree, there are still some limitations for it, which are:
- The aggrieved spouse has to wait for a year even if the Decree is not in the favor of the aggrieved party.
- One cannot file the petition of divorce subsequent to the petition of Restitution of Conjugal Rights as it is said to be destructive to each other.
When can the court refuse to provide the Decree?
Both Husband and Wife have right to take remedy of Restitution of conjugal rights. But, if the husband applies for it and the court finds that there is a cruelty of husband and her in-laws, if the husband has not completed the conjugal relations or if the husband did not pay the quick dower then the court can refuse to pass the decree of Restitution of Conjugal Rights in favor of husband.
Conclusion
Restitution of Conjugal Right is a vital remedy for a spouse. But, definitely it is a forceful act for one party. When a person is separated from other party emotionally, physically and mentally then it is very difficult for them to get back to that person without wishing to come. This section is definitely a saving clause but it doesn’t confirm the effectiveness per se.