Restitution of Conjugal Rights
In the absence of a Uniform Civil Code, marriages and divorces are governed by personal laws in India which administer the terms like maintenance, marriage, divorce, child-custody, judicial separation, annulment and restitution of conjugal rights.
What are conjugal rights?
Conjugal rights refer to the matrimonial rights available to the husband and wife. These are the right which the husband and wife have, owing to the matrimonial bond, to each other’s society, comfort, and affection.
What is restitution of conjugal rights?
The term has origin in the English law and is a species of matrimonial cause or suit which was brought whenever either a husband or wife was guilty of the injury of subtraction or lived separately from the other without any sufficient reason; in which case the ecclesiastical jurisdiction compelled them to come together again, if either be weak enough to desire it, contrary to the inclination of the other.
Under the Hindu Marriage Act, 1955, the term restitution of conjugal rights is governed by Section 9 which states that if either of the spouses, without any reasonable excuse(s), withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights. Section 9 of the Act is a provision to salvage the matrimonial alliance.
Who can file for restitution of conjugal rights?
The provision of restitution of conjugal rights under Section 9 of the Act is gender-neutral and any spouse can file for the same if the other spouse is guilty of withdrawing himself/herself from the matrimonial home without a just and proper reason. If the petition succeeds then the couple would be required to stay together. However, it has to be pointed out that a decree of restitution of conjugal rights cannot be used to forcefully make the party who has withdrawn from the matrimonial home to live with the one who sets petition for restitution.
Pre-requisites of Section 9 of the Hindu Marriage Act, 1955
The following are the conditions necessary for filing a petition for restitution of conjugal rights:
- Spouses must not be staying together.
- Withdrawal of a party from the other must have no reasonable ground for such withdrawal.
- The aggrieved party must apply for restitution of conjugal rights.
Jurisdiction for the petition under Section 9 of the Hindu Marriage Act, 1955
A petition under Section 9 of the Hindu Marriage Act, 1955, can be filed in any of the following jurisdictions:
- The place where the marriage of the parties was solemnised; or
- The present place of residence of the wife; or
- The last place where the couple resided together.
Onus of proof under Section 9, Hindu Marriage Act, 1955
The petitioner, i.e. the one who has filed the petition for restitution of conjugal rights is burdened with the responsibility of proving that the respondent has left him/her without a just cause. The respondent, on the other hand, has to prove that there was a sufficient reason or ground which led to her withdrawal from the matrimonial home.
What is the option with the respondent?
The respondent party has two options:
- The respondent can contest the petition and prove that the respondent had sufficient reason to withdraw from the matrimonial home; or
- The respondent can file a counter-claim under Section 23A of the Hindu Marriage Act, 1955.
Maintenance in restitution of conjugal rights proceedings
Interim maintenance, i.e. maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955 is a gender-neutral provision whereby either party, i.e. the husband or the wife can claim maintenance and litigation expenses till the finality of the case.
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