Marriage is a religious sacrament which constitutes the very basis of a social entity. It is based upon duties, rights, affection between husband and wife. But when such affection and togetherness goes into hiding, it is necessary to unearth the same through various matrimonial remedies one of which is the restitution of conjugal rights. The word ‘restitution’ refers to restoration and ‘conjugal’ refers to marriage or relating to it, i.e., comfort and affection of the spouses towards each other. When the relation goes haywire, people leave their partners in the heat of the moment or ongoing callousness. If any of the spouses leaves his/her counterpart or withdraws from the society of the other without any reasonable excuse, the latter is entitled to file a petition for the restitution of conjugal rights. The duty of the court is to restore their love and affection by making them live with each other forcefully.
Essentials to be fulfilled:
- The spouse must have withdrawn from the society of another,
- No reasonable excuse for such withdrawal,
- Aggrieved spouse files for restitution of conjugal rights.
Important Points to remember while filing a petition for Restitution of Conjugal Rights:
- Under Hindu Law, the petition is filed under Section 9 of the Hindu Marriage Act, 1955 before the district court.
- Muslims are not adjudged by any specific provisions and are guided by general laws only. Moreover, under Muslim law, a suit is filed before the civil court and not a petition.
- The burden of proof is twofold – first, the petitioner needs to establish that the respondent has left from his/her society and second, the reasonability of the excuse becomes due on the one who left.
- In reality, it’s not possible to compel the person to start living with his/her corresponding person through a decree of the court. The court can attach the properties of the judgment debtor in order to forcefully execute the decree.
- If the decree remains unexecuted for more than one year, it becomes a valid ground for divorce under Section 13(1A) of the Hindu Marriage Act, 1955.
Step-by-Step Petition Filling Process:
- File the petition before the District Court having territorial jurisdiction in the matter. The copy of such petition would be sent to the respondent.
- The court would call them for counselling to settle the matter.
- Counselling may take 4-5 sessions.
- In the background, the wife may file for legal expenses from her husband under Sec. 24 of the Hindu Marriage Act, 1955.
- If accepted by both the parties, the petition for restitution is granted.
Grounds of Rejection of Petition:
- If the petitioner was involved in some kind of matrimonial misconduct. For e.g., adultery, desertion, domestic violence, etc.
- If the respondent has a valid claim to any matrimonial relief.
Misuse of the petition:
Misuse of this remedy is widely in practise where one spouse files such petition for the restitution of conjugal rights with the knowledge that his/her counterpart would not agree for the restoration of such comfort and cohabitation. Subsequently, it becomes a legal excuse for divorce.
Statutory law References:
Section 9, 13(1A) & 24 of the Hindu Marriage Act, 1955
Saroj Rani v Sudarshan Kumar Chadha AIR SC 1984 1562
- Sareetha v. T. Venkatasubbaiah A.I.R. 1983 A.P. 356
Do(s) and Dont(s):
- If you (husband) face the threat of Sec. 498A of IPC, don’t file for restitution of conjugal rights.
- If the petition has been rejected, it is better to file for divorce.