RESTITUTION OF CONJUGAL RIGHT

Explain the concept of Restitution of Conjugal Rights with case laws.
OR
Discuss the provisions of Section- 9 of Hindu Marriage Act, 1955 and explain the Constitutional Validity of section- 9 with relevant case laws.

In a Hindu Religion it is believed that Marriage is a sacrament which unites two persons of opposite sex for “n” number of yea allow them to enjoy the companionship of each other. According to Hindu Religion marriage is a holy activity and it is permanent in nature which arises matrimonial rights and obligations and it is duty of each spouse to perform his/her matrimonial obligations.

But sometimes one of the spouses does not fulfil his/her matrimonial obligations intentionally then in such a situation a question arises that, “whether the another spouse does have any remedy to compel the former spouse to fulfill his/her matrimonial obligations.”

Section 9 of Hindu Marriage Act, 1955 deals with such kind of situations. If any party is aggrieved because of this cause then he can file a petition for Restitution of Conjugal Rights under this section.
According to this section, if any spouse whether husband or wife fails to perform his/her matrimonial obligations and has withdrawn from the society of the other spouse, then the aggrieved party can file a petition in a District court for Restitution of Conjugal Rights.

In a leading case of Ranjana V. Kejriwal vs. Vinod Kumar Kejriwal (AIR 1997 Bom 380) Hon’ble Court held that,” where there is no valid marriage between the parties, the decree of Restitution of Conjugal Rights could not be granted.

Here the word “Conjugal Rights” means Matrimonial Rights and the word “Society” means Companionship, Cohabitation i.e. Consortium (living together as husband and wife). According to this section, if any spouse has withdrawn from the society of another spouse it means the former has refused to stay with another spouse, refused to have matrimonial intercourse and refused to give company and comfort.

So, it can be said that the word “Withdrawn from Society” has element of Desertion.
If the petitioner proves that respondent has deserted him, it will obviously amount to withdrawal from society. This section includes two kinds of desertion:-
• Actual Desertion
• Constructive Desertion

Where any spouse has left the matrimonial home and started residing apart from another spouse that is actual desertion whereas if both the spouses reside in matrimonial home but one of the spouses refuses to perform matrimonial obligations and refuses to matrimonial intercourse that is constructive desertion.

In both the cases an aggrieved party can file a petition for restitution of conjugal rights. But the initial burden of proof will be on the petitioner and he has to prove that the respondent has withdrawn the society without any reasonable excuse and if he proves this thing then burden of proof will be shifted on the respondent and he will have to prove that he has withdrawn from society because of a reasonable ground. If the respondent proves the reasonable excuse then the court will not grant the decree otherwise court will grant the decree of restitution of conjugal rights.

In a leading case of Vijay Kumar vs. Suman[(1996) 1 HLR 24 (P&H)], Hon’ble Court held that, “persistent demand of dowry or physical and mental torture was held to be a reasonable cause for wife to withdraw from the society of husband.”
Section 9 of Hindu Marriage Act, 1955 provides a positive relief and its main aim is to preserve the marriage and not to disrupt it as in the case of “Divorce” or “Judicial Separation.” This section protects the matrimonial rights of both the parties and tries to unite them again even after some misunderstanding.

But the constitutional validity of this section was challenged in a case of T. Sareetha vs. T.V. Subbaih (AIR 1983 A.P. 356) in which Hon’ble Court held that, “Section 9 being violative of right of privacy and human dignity guaranteed by Article 21 of the Constitution is ultra vires of the Constitution. Further, section 9 did not promote any legitimate public purpose based on any concept of social good, and thus being arbitrary is violative of article 14 of constitution.”

But in a leading case of Saroj Rani vs Sudarshan Kumar Chadha (AIR 1984 SC 1562), Supreme Court held that, “ the object of restitution decree is to bring about cohabitation between the parties i.e. so that they can live together in a matrimonial home in amity. The remedy of restitution aims cohabitation and not merely sexual intercourse which is one of the element of matrimonial relation. It does not enforce sexual intercourse so it does not affect the right of privacy and human dignity directed by article 21 of constitution. It serves social purpose as an aid to the prevention of breakup of marriage. So, it is not arbitrary and violative of Article 14 of Constitution. Thus the remedy was held to be intra vires the Constitution.”

Marriage is a social institution and it is not only important for parties but also important for society because it helps the society in continuation by adding a unit into it. So, from the point of view of society also, it is necessary that marriage between parties should not be broken and this remedy gives them chance to solve all the issues and enjoy the companionship of each other.