Restitution of conjugal rights under Hindu Marriage Act 1955 By Diksha Dubey @Lexcliq

What is the Restitution of Conjugal Rights?

According to Section 9 of the Hindu Marriage Act, 1955 – when both the husband and the wife, without proper reason, withdrew from the society of the other. The aggrieved party may execute, by petition to the district court, for restitution of conjugal rights. On being satisfied with the efficiency of the statements made in such petition and that there is no proper ground, the court may declare restitution of conjugal rights respectively.

What are conjugal rights?

Conjugal rights mean the right to stay together. The right of sexual intercourse is between the husband and the wife. This is considered as the conjugal rights. The Hindu Marriage Act, 1955 Section 9 says if either the husband or the wife, without a solid explanation, withdrawn from the society of the other. The aggrieved party may request the court for restitution of conjugal rights.

Requirements of Restitution of Conjugal Rights

  • The withdrawal is done by the respondent from the community of the petitioner.
  • The withdrawal is without any reasonable justification or excuse or lawful ground.
  • There should be no other lawful ground for denial of the relief.
  • The court should be filled with the truth of the observation made in the petition.

Procedure to be followed for restitution of conjugal rights

  • The aggrieved spouse files the restitution suit petition in the district court. Later the petitioner assigns the case application to HC.
  • The aggrieved spouse files the restitution suit petition in the district court. Later the petitioner assigns the case application to HC.
  • Both the parties should rise before the court on the specified dates.
  • Then both the parties will be sent to the counseling gatherings by the court. Usually, these courts hold 3 sessions with an interval of 20 days between sessions which goes for four months.
  • The judge will finally pass a decree based on the description given by the parties and on the counseling held.

On What Grounds, The Court Can Pass The Order Of Restitution Of Conjugal Rights?

Following are the valid points on which the court passes the order of restitution of conjugal rights:

  • If the petitioner proves in the court that the respondent (spouse) withdrawn from his/her society without giving any reasonable excuse.
  • The statement presented by the petition (aggrieved spouse) in his or her petition is true; and
  • The court did not find any legal ground, that is, why the aggrieved party should not be given the restitution of conjugal rights.

Marital Obligation

Under Section 9, of the Hindu Marriage Act, 1955, if a consent decree for the restitution of conjugal rights is passed, it will not be a nullity. If it is not challenged in an appeal or by way of other solutions available under the law and becomes final. Such an order cannot be ignored; however, if someone does so, it can form a valid ground of divorce proceedings under section 13 (1A) of the Hindu Marriage Act 1955.

How the court can refuse to grant an order of restitution of conjugal rights?

If the husband either leaves a wife or ignores to make his conjugal obligations without any proper reason, then the wife can demand restitution of conjugal rights. Additionally, a husband can apply for restitution of conjugal rights. But the court can deny granting an order of restitution of conjugal rights for the below reasons:

  • The cruelty of husband or in-laws.
  • On the failure by the husband to achieve conjugal obligations.
  • On non-payment of a quick dower by the husband.

What is judicial separation?

Each party to the marriage may give a petition on any of the grounds declared in the requirements for divorce, praying for an order of judicial separation. A judicial separation is a legitimate way to stay separate from the husband or wife, without getting a judgment of divorce.

It also assists in cases to justify a petition for restitution of conjugal rights. A judicially separated spouse cannot be given a purpose to hold a spouse simply living separately, and who has not received a decree for judicial separation.

There has been no resumption of cohabitation (the state of living together) among the parties to the wedding for one year or upwards, after the passing of the decree for judicial separation, it shall be a ground for separation.

What are the limitations of restitution of conjugal rights?

  • Even on the refusal of accepting the decree of restitution of conjugal rights, the aggrieved spouse has to wait for one year.
  • With the petition of the restitution of conjugal rights, alternatively, the petition of divorce cannot be filled. It is believed that these prayers are mutually destructive of each other; therefore, must be filled after the failure of the previous one.

Conclusion

Marriage is a pure relation between two person but it is not right to only prevent for this relation force to live together However, there is a bigger debate we need to dwell into. As understood, the restitution of conjugal rights is a part of the personal laws of the individual, thus they are guided by ideals such as religion, tradition and custom. A very important feature of restitution of conjugal rights to be emphasized is that it is a remedy is aimed at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation. It serves to aid prevention of the breakup of marriage, thus is a means of saving the marriage. The decree of restitution of conjugal right or right to stay together is not obeyed for a period of more than one year, subsequent to the date of the decree, it becomes a good ground for divorce.

So the restitution of conjugal rights remedy tries in promoting reconciliation between the parties and maintenance of matrimonial. It tries to protect the society from denigrating. But the final decision is that of the parties whether to obey the decree of restitution of conjugal rights and to continue with the matrimony or not.

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