Marriage is India is revered as a sacred bond and a union of two souls. The manner in which society deals with marriage and its consequences has also changed totally. Since India does not have a uniform civil code, matrimonial issues are still governed by the personal laws. Matrimonial disputes in India reached to a peak level due to the changing attitude of the society towards marriage.
The increasing stress of life, unfulfilled demands and desires are the main reasons for the matrimonial disputes. There are some remedies available under the personal law in India related to matrimonial disputes. Restitution of conjugal rights is one of them, provided under Section 9 of the Hindu Marriage Act, 1955.
To whom Hindu Marriage Act applies?
Before discussing the remedies related to matrimonial disputes under Hindu law, it is important to know the application of the Act. As per Section 2 of the Act, the following persons are covered under the ambit of the Act:-
- Who is Hindu by religion in any of its forms or development, including a Virashaiva, a Lingayat or follower of the Brahmo, Prarthana or Arya Samaj.
- Persons who belongs to Buddhist, Jaina or Sikh religion.
A person who belongs to Muslim, Christian, Parsi or Jew religion doesn’t come under the sphere of Hindu Law.
What is Section 9 of the Act?
Section 9 of the Hindu Marriage Act, 1955 deals with the restitution of conjugal rights. Restitution means that something has broken is being restored to its original position. Where one spouse refused to cohabit with the other spouse without reasonable excuse, under this provision aggrieved spouse can file a petition before the District Court to restore his/her conjugal right.
If the spouse has leaved the company of the other company with some reason, then he/she cannot be compelled to resume the cohabitation with the other spouse. The court will grant the relief if there is no legal bar to decree of restitution of conjugal rights. The basic idea behind the restitution of conjugal rights is to preserve the marriage tie as far as possible.
What are the conditions of Section 9?
For obtaining the decree of restitution of conjugal rights there are some condition which needs to be fulfilled, these are:-
- A valid marriage must be there.
- The other spouse has withdrawn from the society of the petitioner.
- There is no reasonable excuse for such withdrawal. The burden of proving this fact is on the petitioner.
- The court satisfied with the truth of the statements made in the petition.
- There is no legal bar on granting the decree.
Where to file the case?
An aggrieved party can the file the case at one of the following places:-
- Where the marriage was solemnized.
- Where petitioner and his/her spouse last resided together.
- Where the respondent is presently residing.
- Where the petitioner is presently residing.
On what grounds petition can be rejected?
There are some reasonable grounds on that petition of restitution of conjugal rights can be rejected by the court. These are the following:-
- If respondent has any ground on which he/she can claim any matrimonial relief.
- If petitioner is guilty of any matrimonial misconduct.
- If petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with petitioner. For e.g. husband neglect his wife, harassment and constant demand of dowry etc.
Maintenance in the restitution of conjugal rights cases:
Spouse can claim maintenance under Section 24 of the Act, during the pendency of petition of restitution of conjugal rights. An application can be made under Section 24 for interim-maintenance and such maintenance can be claimed till the final disposal of the case. It is important to know that husband can claim maintenance only if he is mentally or physically disabled to earn and support his livelihood.
What if spouse didn’t join the company after passing of decree of restitution of conjugal rights?
Restitution of conjugal rights is a way to save marriage and an option for person who is not yet ready for divorce. However, even after passing of restitution decree, a person cannot be forced to cohabit. In that case, an aggrieved party has an option of filling execution under Order 21, Rule 32 and 33 of Civil Procedure Code (CPC). Where the decree of restitution of conjugal rights has been passed and the other spouse does not obey it, then it may be executed by only by attachment of his/her property. The attached property can be sold on disobedience of decree for a period of 6 months.
Conclusion:
Restitution of conjugal rights is a highly debatable topic because at one side it is a positive remedy that provides a chance to revive marriage, on another side it forces two unwanted people to live together. Before using this remedy, each and every aspect of the case must be considered so that it doesn’t get misused.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
