Section 9 of Hindu Marriage Act states Restitution of conjugal right. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights land the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
The section further provides an explanation, under which the burden of proving reasonable excuse is imposed on the person who has withdrawn from the society.
The burden to prove is on that spouse who withdraws from the society and refuses to discharge his/her martial obligation. If the husband or the wife refuses to discharge their matrimonial obligations,then in such circumstances they have to lead strong evidence in support of their refusal to discharge such of those obligations on their part.
Refusal to discharge obligations can be said to be reasonable or justified only when it is impossible for one of them to live with other. In a landmark case it was held that the withdrawal by the wife from the society of husband was unjustified and unreasonable as there was no demand of dowry and there was no possibility of ill-treatment by the husband.
Cruelty, which is a ground for divorce, also can be offered as a defence in a suit for Restitution of Conjugal Rights. The allegation made by the wife that her husband is drunkard and indulges in gambling is held to be a very weak attempt made by the wife to show is as cruelty and as a defence for Restitution of Conjugal Rights.
The essential requisites for seeking the Rights to Conjugal Restitution under this section are:
(a) There must be withdrawal by one of the spouses from the society of another.
(b) The withdrawal must be without any reasonable cause or excuse or lawful ground
(c) There should be no other valid legal ground for refusal of the relief, and
(d) The court must be satisfied about the truth of the statements made in the petition.
In a case, T. Sareetha vs. T. Venkata Subbaiah, 1983 the civil revision petition is filed by Sareetha, a well- known film actress of the south Indian screenagainst an order passed by the learned subordinate Judge, Cuddapah, overruling her objection raised to the enter taining of an application filed by one venkata subbaiah, under section 9 of the Hindu Marriage Act (hereinafter referred to as 'the Act) for restitution of conjugal rights with her.
Fact of the case:
Sareetha while studying in a high school and then hardly aged about sixteen-years and staying with her parents at Madras was alleged to have been given in marriage to the said venkata subbaiah, at Tirupathi on
13-12-1975. Almost immediately thereafter they were separated from each other and have been continuously living apart fromeach othe for these five-years and more. Venkata subbaish had, therefore, filed under section 9 of the Act O.P. No. 1 of 1981 on the file of the subcourt, cuddapah for restitution of conjugal rights with sareetha. Sareetha had taken a preliminary objection to the jurisdiction of the cuddapah sub-court to the entertaining of that application the contention of sareetha was that the petition filed by venkata subbaiah itself showed lack of jurisdiction on the part of cuddapah Court to try the petition and that the sub-court cuddapah ought to have declined jurisdiction. The basis for this objection was an allegation "that the marriage took place at Tirupathi and that the petitioner and respondent last resided together at madras". Sareetha relied upon this statement of venkata subbaiah to say that the cuddapah Court had no jurisdiction to entertain the petition of venkata su bbaiah. It was this preliminary objection taken by sareetha that had been overruled by the cuddapah sub-court, leading sareetha to the filing of this civil Revision petition.
3. Venkata subbaiah hails from cuddapah where he owns a house and agricultural lands. Venkata subbaiah stated in his petition for restitution of conjugal rights that after his marriage with sareetha at Tirupathi in December 1975, he and sareetha went to cuddapah and lived there together for six months and that thereafter they went to Madras and stayed at Madras with the parents of sareetha for some time. According to venkata subbaiah, their stay a cuddapah for six months was immediately after their marriage at Tirupathi and that was the place where they last resided together within the meaning of the Act. The subsequent stay at madras according to venkata subbaiah, should not be regarded as the place where they last resided together. On the other hand, sareetha contended that as she and venkata subbaiah had on the statement of venkata subbaiah himself last lived to gether at madras the cuddapah Court would have no jurisdiction to try the application of venkata subbaiah.
4. By the date of her marriage sareetha was studying in High school and was living with her parents at Madras. Venkata subbaiah hails from cuddapah. The petition of venkata subbaiah disclosed that after their marriage at Tirupathi they lived at cuddapah for six months and that thereafter they went to the parents of sareetha at madras and lived there for some time. There can be no doubt that Madras was thier last place of living together because thereafter they parted company with each other. Those were the days when sareetha was attempting to gain access to the south Indian cinefield of which she is today one of the most talented top actresses. According to venkata subbaiah's allegations, these attempts of sareetha led to misunderstanding between him and sareetha on the one hand and also between him and the parents of sareetha on the other, and forced venkata subbaiah to return to cuddapah leaving sareetha at Madras. Thereafter venkata subbaiah and sareetha never met each other.
In the view I have taken of the constitutional validity of section 9 of the Hindu Marriage Act, I declare that section 9 is null and void. As a corollary to that declaration, I hold that O.P. No. 1 of 1981 on the file of subordinate Judge, cuddapah, filed by venkata subbaiah for the relief of restitution of conjugal rights with sareetha is legally incompetent. Accordingly, I prohibit the Court of the subordinate Judge, cuddapah from trying O.P. No. 1/81.
41. The civil Revision petition is allowed, but without costs.
In a similar case, The Judicial committee of the privy council in Moonshed Buzloo Rhueem v. Shumsoon Nissa Begum, (1867) 11 Moo Ind App 551, held that a suit for restitution of conjugal rights filed by a
Muslim husband was rightly filed as a suit for specific persormance it is on the same lines that order 21 Rule 32 of the code of civil procedure speaks of a decree granted for restriction of conjugal rights as a decree of specific performance of restitution of conjugal rights.
In Wily v. Wily (1918) P. 1"
an offer by the husband to live under the same proof with his wife, each party being free from molestation by the other was held not an offer to matrimonial cohabitation". (See N. R. Raghavachariar's Hindu Law, 7th Edn. Vol II p. 980. Gupt's Hindu Law of Marriage P. 181 and derrett's Introduction to Modern Hindu Law para 308).
Another case of Smt. Saroj Rani vs Sudarshan Kumar Chadha
The wife-appellant filed a suit against the husband- respondent under Section 9 of the Hindu Marriage Act 1955, for restitution of conjugal rights. Though the respondent contested the petition contending that he had neither turned the appellant out from his house nor withdrawn from her society later as he made a statement in the Court that the application under Section 9 be granted; a consent decree was passed by the Sub-Judge for the restitution of conjugal rights between the parties.
After a lapse of a year, the respondent-husband filed a petition under Section 13 of the Act against the appellant for divorce on the ground that though one year had lapsed from the date of passing the decree for restitution of conjugal rights no actual co-habitation had taken place between the parties. The appellant filed her reply contending that she was taken to the house of the husband by her parents one month after the decree and that the husband kept her in the house for two days and then she was again turned out. It was further alleged that an application under Section 28A filed in the Subordinate Court was pending. 304
The parties herein were married at Jullundur City according to Hindu Vedic rites on or about 24th January, 1975. The first daughter of the marriage Menka was born on 4th January, 1976.
On 28th February, 1977 second daughter Guddi was born. It is alleged that 16th May, 1977 was the last day of cohabitation by the parties. It is further alleged that on 16th May, 1977, the respondent- husband turned the appellant out of his house and withdrew himself from her society. The second daughter unfortunately expired in the house of the respondent/father on 6th August, 1977. On 17th October, 1977, the wife-appellant filed a suit against the husband/respondent herein under Section 9 of the Hindu Marriage Act, 1955 hereinafter referred to as the said Act for restitution of conjugal rights.
In view of the argument now sought to be advanced, it is necessary to refer to the said petition. In the said petition, the wife had set out the history of the marriage as hereinbefore briefly mentioned and alleged several maltreatments both by the husband as well as by her in-laws and thereafter claimed decree for restitution of conjugal rights. On 21st March, 1978, the learned Sub-Judge Ist Class passed an order granting Rs. 185 per month as maintenance pendente lite and Rs. 300 as the litigation expenses. On 28th March, 1978, a consent decree was passed by the learned Sub-Judge Ist Class for restitution of conjugal rights. It may be mentioned that on the petition of the wife for restitution of conjugal rights, the husband-respondent appeared and filed his written statement admitting therein the factum of marriage between the parties but denied the fact that the respondent had ever made any demand from the petitioner as alleged or had ever disliked her or had withdrawn from her society or turned her out from his house as alleged by the wife petitioner in her petition for restitution of conjugal rights. The respondent thereafter made a statement in the court that the application of the petitioner under Section 9 of the said Act be granted and decree thereof be passed. Accordingly the learned Sub-Judge Ist Class on 28th March 1978 passed the decree for the restitution of conjugal rights between the parties. It was alleged by the petitioner-wife that the appellant had gone to the house of the respondent and lived with him for two days as husband and wife. This fact has been disbelieved by all the courts. The courts have come to the conclusion and that conclusion is not challenged before us that there has been no cohabitation after the passing of the decree for restitution of conjugal rights.
On 19th April, 1979, the respondent/husband filed a petition under Section 13 of the said Act against the appellant for divorce on the ground that one year had passed from the date of the decree for restitution of confugal rights, but no actual cohabitation had taken place between the parties. The appellant filed her reply to the said petition. The categorical case in reply of the appellant was that it was incorrect that after passing of the decree, there had been no restitution of conjugal rights between the parties, positive case of the appellant was that after passing of the decree, the wife was taken to the house of the husband by the parents of the wife after one month of the decree and that the husband kept the wife in his house for two days and she was again turned out. It was further alleged that the wife had filed an application under Section 28A of the said Act in the court of Sub-Judge, 1st Class, Jullundur on 22nd January, 1979 with the request that the husband should be directed to comply with the decree passed against him under Section 9 of the said Act and the application was pending at the time when the reply was filed by the wife to the petition for divorce.
In Sushila Bai v. Prem Narayan, the husband deserted his wife and thereafter was totally unresponsive towards her. This behavior was held sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed. The defense to this principle lies in the concept of a ‘reasonable excuse’. If the respondent has withdrawn from the society of his spouse for a valid reason, it is a complete defense to a restitution petition.
In Shakila Banu v. Gulam Mustafa, the Hon’ble High Court observed: “The concept of restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”