Introduction:
Marriage in India is governed by personal law. All these personal laws have a particular provision regarding the restitution of conjugal rights.
We can say that the main aims of the conjugal rights or restitution of conjugal rights are to protect the spouse’s marriage life and make a good and healthy relationship between the husband and wife.
In simple terms, we can say that spouse has moral duty to stay together and living life as a husband and wife and live inter society with a respectfully married life.
According to the provision of various marriage acts governed in India, all these personal laws have a particular condition regarding protecting married life between spouses. That different section as per the law provides a safeguard of married life. In this article, we discuss the concept of restitution of conjugal rights, according to section 9 Hindu marriage act 1955.
Know Sections of various laws that covered the concept of conjugal right:
The Hindu marriage act 1955, Section 9,
The Special marriage act 1954, Section 22,
The Indian divorce act 1869, Section 32,
The Parsi Marriage and divorce act 1936, Section 36.
All these personal law sections and this provision try to protect the marriage life well restitution of conjugal right.
What section 9 of the Hindu marriage act 1955 says?
According to this section, there is no right of husband or wife to withdraw from the society of each other without any reasonable excuse. If they are doing so, the affected party can follow the court for his marriage life, and the party can file a petition for restitution of conjugal rights.
As per this section, if the applicant party fully satisfies the court and a spouse proved guilty for staying away without any sufficient reason, the court may pass the order against the guilty party to stay together and give the necessary decree of conjugal rights.
Here we should note that the excuse is reasonable or not that must prove of the party who has withdrawn from the society.
Let’s see which key elements must be required to obtain a decree of conjugal rights under section 9 of the Hindu marriage act 1955.
- The husband and wife do not stay together.
- There is a reasonable excuse for the spouse to withdrawal of so society from the other one.
- the spouse should have a reasonable excuse for withdrawal from society from the other one.
The scope of conjugal right:
Though under section 9 of the Hindu marriage act, if a spouse obtains a remedy of restitution of conjugal right, that means not a violative of article 14 or article 21 of the constitution of India.
In the case of Smt. Saroj Rani vs Sudarshan Kumar Chadha, (AIR 1984 SC 1562), According to this act, the supreme court observed that the decree for restitution of conjugal is sensible and respective; that’s why at the time of execution of such order by the court, it does not keep in view as the violence of constitution act. In India, the right of a husband or wife to society is inherent in the marriage of a spouse. The main aim of conjugal rights to provide safeguards to prevent cruelty between spouses.[1].
In the case of Smt. Sneh Prabha vs Ravinder Kumar, (AIR 1995 SC 2170), The supreme court observed when the marriage between the parties is irretrievably broken down, there is no chance to live together as a husband and wife, Had the court grant divorce.[2].
In the case of Ranjana kejriwal v.Vinod Kumar Kejriwal (AIR 1997 Bom 380), The Bombay high court held that when the petitioner’s wife alleges that her husband is already married, the fact was concealed. The court observed that the application regarding restitution of conjugal rights is maintained only against the wife or the husband whose marriage is legal.[3].
Rule of Withdrawal of petition:
Any one of the parties can withdraw the petition of restitution of conjugal right. It has a party’s legal right; the court can not decline to accept such a petition.
Sometimes it happens in the settlement cases between the parties if parties agree to obtain a divorce or agree to live together. In those situations, the petition under section 9 can be withdrawn.
Rule of Execution of decree:
If the decree of conjugal rights passed on the bassed of a valid marriage, that could be enforced by law with the attachment of property. If the party fails to comply with the court, it can punish the defrauder party for contempt of court.
In the case of Dilip Kumar Barik vs Smt. Usharani Barik, (AIR 2007 Ori 83), the Orissa high court held, In the Hindu Society and according to the practice and custom prevalent a wife never volunteers to join husband for enforcement of a decree of conjugal rights and in that respect, the husband should take appropriate steps. Taking note of the conduct of the husband that he did not execute the decree for restitution of conjugal rights maintenance was provided to the wife. According to the provisions in the Limitation Act, such a decree is enforceable within a period of twelve years. Even if the law is so, then also a wife cannot wait for twelve years in destitute condition with hope for the execution of the decree for restitution of conjugal rights by the husband. In such a case, the conduct of the husband coming within the ambit of Section 18 (2)(g) of the Act 1956 is relevant to determine as to whether the wife should get maintenance and in that case the aforesaid conduct of inaction by the husband to execute the decree is sufficient to approve the order of maintenance granted in her favor.[4].
Expression ‘reasonable excuse’:
The burden of proof is an essential factor in the case of conjugal rights. The applicant’s husband has to prove that the wife has withdrawn from society. This burden of proof can shift to the wife as he must explain why what is a reasonable excuse for doing this.
If the wife does not satisfactorily explain reasonable excuse, the decree of restitution of conjugal rights can be passed against her. If the wife satisfactorily proves with a valid reason, the said Petition will be dismissed.
Many reasons may be included in the reasonable causes, such as husband’s marital misconduct, act doing by husband is not appropriate for a wife to live together, etc. If the wife proves, that a reasonable cause which is she felt. On that basis, the court can be rejected the petition.
In the case of Bijay Kumar Singh vs Smt. Manju Devi, the Jharkhand high court held that The expression ‘reasonable excuse’ in S. 9 is of significance and though the expression has not been defined in the Act, yet it implies that the reason offered by the spouse for withdrawing himself or herself from the company of the other should be legitimate, convincing and appealing to reason as understood by a person of ordinary prudence. In a suit for restitution of conjugal rights, it becomes incumbent upon the plaintiff to establish that.[5].
In the case of Sushil Kumari Dang vs Prem Kumar Dang, (AIR 1976 Delhi 321), the Delhi high court held, In order to succeed in a petition for restitution of conjugal rights it is necessary that the husband must be sincere. A decree for restitution may be refused if the Court finds that the petition is not presented bonafide and that there is an ulterior motive other than the sincere desire for a resumption of cohabitation.[6].
Alternative relief of divorce:
The restitution of conjugal rights is a paper decree that can not be bidden to the spouse. It can be prayed as an alternative relief in the petition of restitution of conjugal rights when enforcement of such decree attachment of respondent property for that.
As per the rule, when an applicant applies to execute such a decree, the opposite party must comply with the order. If he or she fails to do so, the law can be enforced by his attached property.
After passing such a decree, the opposite party can apply for another remedy available in law. But after one year, the husband can use it to enforce the said decree.
Within that period, the parties do not comply with the decree for one year or above after the order was passed by the court, which becomes a ground for divorce for both parties.
In the case of Smt. Krishna Devi vs Additional Civil Judge, Bijnor, (AIR 1985 All 131), the Allahabad high court observed that Alternative relief of divorce could be prayed for in a petition under S.9. The procedures that are to be followed in such cases are under the Civil P.C. does not prohibit alternative relief. The reliefs may be different or conflicting with each other, but in case of conflicting reliefs, only one relief is to be granted by the Court, in case the suit is to be decreed.[7].
Cruelty as defence:
Cruelty is an offered defence and provides a ground for divorce in the restitution of conjugal rights that the husband files. The wife has a right to refuse to live with a husband; she has to prove that she is suffering from cruelty.
She can also refuse to live with her husband if she felt any harmfulness to life with her husband. If the wife files a suit against the husband, the same grounds are also available for a husband to defend in the lawsuit for restitution of conjugal rights. In short, we can say that the ground of cruelty for defence is open for both. However, the defendant party must satisfactorily prove that ground for his or her defence.
Maintenance effective date:
The wife has an equal right to living the same as her husband in society. She should not felt destitute in her life, during her married life or divorce. The wife is entitled to get the maintenance during the proceedings. This right is conferred her by the law.
In the case of Jwala Prasad vs Smt. Meena Devi And Ors, (AIR 1987 All 130), the Allahabad high court observed that, Grant of Maintenance pendente lite, from date of institution of a petition under S.9, not illegal because the litigation in the instant case started with the making of the application under S.9.[8].
In the case of the Punjab & Haryana High Court Ram Piari vs. Piara Lal, (AIR 1979 Punjab & Haryana 341), has ruled that a decree for restitution of conjugal rights against the petitioner is not a bar to her to claim permanent alimony and maintenance.[9].
In the case of Patel Dharamshi Premji v. Bai Sakar Kanji, (AIR 1968 Guj. 150), the Gujarat High Court has held that under S. 25 permanent alimony can be granted even to an erring spouse and the mere fact that the wife did not comply with the decree for restitution of conjugal rights and that was the cause for the passing of a decree against her, cannot by itself disentitle her to claim permanent alimony under the section.12.
Reference:
(1) Smt. Saroj Rani vs Sudarshan Kumar Chadha, (AIR 1984 SC 1562).
(2) Smt. Sneh Prabha vs Ravinder Kumar, (AIR 1995 SC 2170).
(3) Ranjana kejriwal v.Vinod Kumar Kejriwal (AIR 1997 Bom 380).
(4) Dilip Kumar Barik vs Smt. Usharani Barik, (AIR 2007 Ori 83).
(5) Bijay Kumar Singh vs Smt. Manju Devi.
(6) Sushil Kumari Dang vs Prem Kumar Dang, (AIR 1976 Delhi 321).
(7) Krishna Devi vs Additional Civil Judge, Bijnor, (AIR 1985 All 131).
(8) Jwala Prasad vs Smt. Meena Devi And Ors, (AIR 1987 All 130).
