Restitution of Conjugal Rights under HMA- Conditions, Burden of Proof, Cases

Restitution of Conjugal Rights under HMA- Conditions, Burden of Proof, Cases
Restitution of Conjugal Rights under HMA- Conditions, Burden of Proof, Cases





  • Introduction
  • Restitution under Hindu Marriage Act, 1955
  • Essential Conditions
  • Grounds for Rejection
  • Burden of Proof
  • Restitution of Conjugal Rights and Right to Life, Equality and Privacy
  • Important Case Laws relating to Restitution of Conjugal Rights
  • Suggestions
  • Conclusion


Marriage and family are the two main pillars on which the Indian Society relies for its growth. In India, Marriage is considered as a religious establishment which is essential for the development of our general public. Marriage shapes family and in this way, it can be said that family is a subset of marriage. We live in an age where life is excessively quick and along these lines it results in numerous quarrels. Every one of these things has brought about the absence of peace and harmony among wedded couples.

Hindu Law provides that it is a duty of both husband and wife to cohabit with each other and accompany each other. Therefore, if either of the spouse leaves the other without any reasonable cause and excuse, the other one can file a petition for restitution of conjugal rights. However, this right is not absolute.


Restitution under the Hindu Marriage Act, 1955-

if somebody’s life partner has left without giving any reasonable cause or excuse. Section 9 of the Hindu Marriage Act peruses that when either of the party to a marriage withdraws from the society of the other without giving a justifiable excuse, the aggrieved party can apply for restitution of conjugal rights.

Section 9 provides that where either the husband or the wife has withdrawn from the other’s society without reasonable excuse, the party concerned may, by petitioning the district court or the family court for the restitution of marital rights and the court, be satisfied with the truth of the statements made in the petition and that there is no legal reason why the petition should not be filed.

Where there is a question whether there was a reasonable excuse for retirement from society, the person who has withdrawn from the society of the other has to prove that there is a reasonable ground for his withdrawal.  


Essential Conditions-

The decree for restitution of conjugal rights requires fulfillment of the following conditions:

  1. One spouse must not be living with another.
  2. Such withdrawal must be without any reasonable excuse.
  3. The party who is aggrieved must apply for the restitution of conjugal rights.

Once the above-mentioned conditions are fulfilled, the decree for restitution of conjugal rights may be granted for the purpose of bringing cohabitation between the parties.


Grounds for Rejection

A petition for restitution of conjugal rights can be rejected:

  1. If the respondent has a ground to seek any marriage relief;
  2. If the petitioner is guilty of misconduct in case of marriage;
  3. If the petitioner is guilty of an act, omission or behavior which prevents the respondent from living with the petitioner.


Burden of Proof-

The burden to prove that the respondent has left the petitioner’s society solely lies on the aggrieved spouse in a marriage. If the aggrieved spouse proves the same, then it is the respondent’s duty to prove that he has withdrawn from petitioner’s society on a reasonable ground.


Restitution of Conjugal Rights and Right to Life, Equality, and Privacy-

Equality between husband and wife implies equality of thought, actions and self-realization and not physical equality and women shall not be forced to go and live in a place from which she has withdrawn.

The right to privacy has been implicitly provided under Article 21 of the Constitution. It has been held that “Hindu law itself, even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanction or procedure, as compulsion by the Courts to force her to return against her will”.

Forcing an individual will be a restraint on an individual. The right to privacy also includes a person’s right to be free from any sort of intervention in personal matters of an individual. Thus, intrusion by government in the life of a married person leads to violation of the right to privacy.

In Kharak Singh, the court said that the definition of the right to personal liberty also includes freedom from encroachment in a person’s private life. Therefore, interference in a man’s life spoils his happiness and health overall.


Important Case Laws relating to Restitution of Conjugal Rights-

There are a number of cases that challenged the validity of Section 9 of the Hindu Marriage Act. Certain courts have also held Section 9 as unconstitutional and that Article 21 of the Constitution is violated by it but the Supreme Court has eventually put an end to the controversy through various judgments:

In T. Sareetha v. T Venkanta Subbaih, it was held that Section 9 violated Article 21 of the Constitution’s right to privacy and human dignity, and is ultra vires of the Constitution. The most common form of violation of an individual’s right to privacy is a restitution of marital rights. Section 9 failed to promote any legitimate public purpose of social good and therefore was arbitrary and violated Article 14 of the Constitution.

In Harvinder Kaur v. Harmander Singh, the Delhi High Court strongly dissented what was held in the aforementioned case, and held that Section 9 doesn’t amount to forced sex as no other machinery forces a person to cohabit with their spouses. Moreover, it provides a right to spouses to claim divorce if the restitution becomes impossible within one year of passing of decree for restitution. Therefore, the section is remediable and not forcible.

In Saroj Rani v. Sudarshan Kumar Chaddha, Sabyasachi Mukherji J held that remedy of the restitution decree is intended at coexistence and consortium, rather than mere sexual relations. It was concluded that the aim of the restitution decree was to establish coexistence between the strange parties so they could live together in friendship in the married house.

In Chitralekha Shibhu Kunju v. Shibu Kunju, it has been held by the Bombay High Court that Section 9 applies only where a marriage has been solemnized pursuant to the law. Now, there is a well-established law that the burden of proof is on the respondent once the petitioner has proved that the respondent has withdrawn from petitioner’s society.

In Huhhram Vs Misri Bai, the court passed the decree of restitution against the wife’s will even when the woman made it very clear that she did not want to live with her husband, the court still went on to award a decree in favor of the husband.


Restitution of Conjugal Rights is a dubious topic. A few people feel it is to safeguard the marriage while some state that there is no importance in compelling the other party to remain with the aggrieved party as they are least intrigued in staying with them. In any case, there is dependably a scope of progress.

The idea of Reconciliation can be attempted in place of the inflexible matrimonial rights. The concept of restitution is extremely unforgiving and brutal, as it forces people to compromise but on the other hand, the tone of compromise is extremely mellow and mentioning. The issue with restitution is that there are high shots that the situation may turn up monstrous after both the parties in a marriage are compelled to live reluctantly. Be that as it may, if the cure is compromise than it may not be hostile to both of the parties and it will likewise dispel any demeanor of misconception.

To execute this the legal executive ought not to be interceded as the capacity of the Court is to settle question not compromise. Instead, there shall be formation of a different committee who would solely focus on administration and solution of matrimonial disputes. The possibility of restitution is exceptionally viable as it is quick, successful and reasonable.



Marriage entitles husband and wife to the conjugal society of one another. If either party sensibly pulls back from the marital society of the other and the parties are not living with each other, the aggrieved party can request for reconciliation of matrimonial rights under Section 9 of Hindu Marriage Act, 1955. But when an individual is isolated candidly from another, at that point it turns out to be extremely difficult to join them. In this way, reconciliation of marital rights is such cure that can drive an individual to be into a marriage however, it can’t ensure its efficiency.



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