Restitution of Conjugal rights is the right to stay together. Section 9 of the Hindu Marriage Act, 1955 provides a remedy to an aggrieved person if the his\her spouse has left the person without giving any reasonable ground. The remedy is provided in the form of Restitution of Conjugal rights.

Restitution : The restoration of something lost.

Conjugal rights: rights relating to marriage or the relationship between husband and wife.

Restitution of Conjugal Rights concept is based upon English Matrimonial Law. In India it was applied by the Privy Council for the first time in 1866 in Moonshee Bazloor V. Shamsoonaissa Begum.

Essential Elements of Restitution of Conjugal Rights:

Following are the key components of Section 9 of the Hindu Marriage Act of 1955 (restitution of conjugal rights):

• The parties must be legally married to one another
• One should exclude themselves from another’s social circle
• This withdrawal has to be made without a valid justification
• The assertion that there is no legal justification for rejecting the decree must be proven to the court’s satisfaction.
• In Ranjana Kejriwal v. Vinod Kumar Kejriwal AIR 1997 Bom 380 , Petitioner Wife alleged that the husband was already married and had suppressed the fact from her. The Court held that the petition for restitution of conjugal rights is not maintainable since there is no legal marriage.

SPECIFIC PROVISIONS :The provisions dealing with restitution of conjugal rights in the various personal laws, the remedy is available under:

1. Section 9 of the Hindu marriage act, 1955.
2. Section 32 or 33 of the Indian divorce act 1869
3. Section 36 of the Parsi marriage & divorce act 1969

Section 22 of the Special Marriage Act, 1954 in case of inter-caste marriage. In order to get the decree of restitution of conjugal rights, the either party has to file for the decree under the above mentioned provisions and then it will not be obligatory on the parties to cohabit after such decree.

Burden of Proof:

An explanation has been amended to the section in the year 1976 which places the burden of proving reasonable excuse upon the spouse who has withdrawn from the society.

The petitioner would first prove his case that the other spouse has withdrawn from his society without any reasonable cause. The burden would then shift to the other spouse for the defense of a reasonable excuse.

Reasonable Clause:

What constitutes a reasonable excuse or a just cause is left to the subjective determination of each court. No straitjacket formula as such has been laid out. What would be a reasonable excuse will depend on the facts of each case. The reason must be grave and convincing.

Restitution of Conjugal Rights Violated:

• Association Freedom – Article 19 (1) (c)
• Freedom to live and work wherever in India – 19(1) (e).
• Any profession may be practised freely – 19 (1) (g).

Infringement of Freedom of Association:

In our country every citizens have a fundamental right to associate with anyone according to his/her wish, By the matrimonial remedy of restitution of conjugal rights is freedom is violated as a wife is compelled to have a association against her will, with her husband. In Huhhram Vs Misri Bai AIR 1979 MP 144, the court passed the restitution against the will of the wife. In this case though the wife had clearly stated that she would not wish to live with her husband, still the court went ahead and gave the judgement in favour of the husband. The opposite thing happened in Atma Ram. v. Narbada Dev AIR 1980 RAJ 35,where the judgement was passed in favour of wife.

Infringement of Freedom to reside and to Practice any Profession:

We live in a society where there is complete freedom as to which profession to choose. At times under the restitution of conjugal rights a person is forced to live with the partner with no general wish or interest. And thus, this freedom to freely reside and practice any profession of choice, seems to be violated. Several times in the past courts have tried to give a remedy. The apex court in the case of Harvinder kaur v. State AIR 1984 Delhi 66 it was said that, “Introduction of the Constitutional Law in the Home is most inappropriate, it is like introducing a bill in a shop”

In T. Saritha Vengata Subbiah v. State AIR 1983 AP 356, the court had ruled that that S.9 of Hindu Marriage Act relating to restitution of conjugal rights as unconstitutional because this decree clearly snatches the privacy of wife by compelling her to live with her husband against her wish. Justice Choudary held that section 9 is a savage and barbarous remedy, violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution. It denies the women her free choice whether, when and how her body is to become the vehicle for the procreation of another human being. The woman loses her control over her most intimate decisions. Clearly therefore, the right to privacy guaranteed by Article 21 is flagrantly violated by a decree of restitution of conjugal right. As a result the section 9 of Hindu marriage act 1955 was unconstitutional. The court observed that the object of the section is to bring about cohabitation between estranged parties so that they can live together. That in the privacy of home and married life neither article 21 nor article 14 has any place.

In Harvinder Kaur v. Harminder Singh AIR 1984 Delhi 66,  the judiciary again went back to its original approach and help Section 9 of Hindu Marriage Act as completely valid. “The legislature has created restitution of conjugal rights as an additional ground for divorce”. The ratio of this case was upheld by the court in Saroj Rani Vs. S.K. Chadha AIR 1984 SC 1562. The Judge recognises restitution of conjugal rights is an archaic remedy “I cannot agree that S.9 is unconstitutional howsoever the remedy may be outmoded or out of tunes with the times. The restitution decree in the scheme of the Act is a preparation for divorce if the parties do not come together”. Para 91 shows “in the end I will repeat what I have said before it is for the legislature to abolish the remedy of restitution and not for the Courts to strike it down in the ground that it is unconstitutional. In my opinion the Courts to strike it down in the ground that it is unconstitutional. In my opinion the existing laws tie his hands.

Conclusion:

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.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.