Marriage comes with responsibilities and such responsibilities vary depending on the couple but the one thing that remains constant for every couple is the need for companionship and intimacy. Since India does not have a uniform civil code, we are still governed by personal laws when it comes to marriage and associated matters. Conjugal rights in the simplest terms denote the rights relating to marriage between married couples. These rights range from companionship to sexual intercourse between couples. Let us understand, what does the restitution of conjugal rights mean and who can file for the same?
Restitution of Conjugal rights
The Hindu Marriage Act, 1955, deals with the restitution of conjugal rights under Section 9. Restitution means that something has broken is being restored to its original position; thereby, in the context of marriage, it implies that one of the spouses has withdrawn from the society of the other spouse, i.e. refused to cohabit with the other spouse, under this provision, the aggrieved spouse can file a petition asking the court that his conjugal rights be restored. However, if the spouse who has withdrawn from the society of the other spouse has reasons to do so, then he/she cannot be forced to go resume cohabitation with the other spouse.
How to file for restitution of conjugal rights?
When a spouse feels aggrieved because the other denies cohabitation with him/her and denies to provide him/her the companionship and intimacy that marriage offers, then the said spouse can file a petition in the court for restitution of conjugal rights. Yes, it does sound kind of patriarchal that a spouse, which in a majority of cases are women, needs to cohabit with the other spouse against her wishes but we are dealing with a law formulated in the year 1955. So for now, let us see the steps involved in a petition for restitution of conjugal rights.
1. Contact the best divorce/family lawyer
No points for guessing because it is obvious that you cannot proceed with a court case without having the backing of the best family/divorce lawyer in Chandigarh, Panchkula, and Mohali. It is important that you contact the best family lawyer in the city in order to get the best advice and a possible legal route.
2. Where do you want the file the case?
It is an unskippable step. You must decide under which jurisdiction the case has to be filed. One cannot file a case randomly at whatever location they want as jurisdictions are predefined in the law that governs them. Under the Hindu Marriage Act, 1955, all petitions whether it is contested divorce, uncontested divorce, judicial separation, child custody, maintenance, restitution of conjugal rights or annulment, can only be filed in either of the following four places:
- Where the marriage was solemnised;
- Where you and your spouse last resided together;
- Where the wife is presently residing; and
- In the case of presumption of death, where you are presently residing.Provide your lawyer all the details:
3. Provide your lawyer all the details
Yes, as they say, you should hide nothing from your lawyer and they are right. Hiding details concerning the case from your lawyer will bring no good to you and whatever you say is protected under the attorney-client privilege. You are required to spare no details concerning the case and provide your lawyer with all the documents regarding the same. This helps your lawyer in building a strong case from the very start and give you the needed boost.
4. Maintenance in the restitution of conjugal rights cases
Under the Hindu Marriage Act, 1955, either of the spouse can claim maintenance under Section 24 of the Act. If there is a petition pending before a court for adjudication of a matter under the Hindu Marriage Act, 1955, you can file an application for interim-maintenance under Section 24 of the Act and claim maintenance from your spouse till the finality of the case.
5. You have the onus to prove
Since you have filed a petition for restitution of conjugal rights, you need to prove in the court that your spouse has refused to cohabit with you without any reasonable excuse while your spouse has to prove that he/she left the matrimonial home on the basis of certain compelling circumstances. At the end of the case, the court will weigh whose evidence was more persuasive and a decree will be passed accordingly.
6. Passing of the decree
After the evidence has been led and the arguments have been addressed, the court passes the decree. Once a decree is passed, you can easily obtain a certified copy of the decree from the court after payment of the requisite fee.
A Decree passed in your favour and your spouse still does not cohabit with you, here what you can do:
Restitution of conjugal rights is your recourse if you want to make a marriage work and do not want to opt for divorce just yet. However, even if a decree is passed in your favour, a person cannot be forced to cohabit with someone else. In that case, you do have an option for filing execution under Order 21, Rules 32 and 33 of the Civil Procedure Code, 1908, and we will cover this issue in our next article.
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