This article is trying to critically analyse the concept of Restitution of
Conjugal Rights, a matrimonial remedy available in the Hindu marriage act 1955.
The author elucidate upon the same by discussing the object scope extent of
applicability of section 9 of the Hindu marriage act 1955 with the help of
various judicial pronouncements.
"We do not give way to marriage from scratch.
Instead, in the elegant language of the marriage ceremony, we enter into the
holy estate of matrimony."
Marriage, also known as 'wedlock' or 'nuptials' is a legally acknowledge
unification or social contract between two partners i.e., the husband and the
wife. This union implies certain legal rights and application to each other
throughout their whole life or until they decide to divorce.
Individuals may ties nuptials for various reasons such as emotional, legal,
social and religious purposes. These rights and obligations also creates
"conjugal rights". The term conjugal rights are the rights created by marriage
i.e., right of the husband or the wife to the society of the other spouse.
The foundation of Right to bring the suit for Restitution of Conjugal Rights is
a fundamental rule for matrimonial rule that one spouse is entitled to society
and comfort of the other spouse i.e., Consortium of the other spouse and where
either spouse has abandoned the other spouse without any reasonable excuse or
In such a situation, the aggrieved party can knock the doors of the court to
enforce the right or to seek justice. Section-9 of the Hindu marriage act
provides remedy for the same and it is the only matrimonial remedies available
for Restitution of Conjugal Rights.
Section 9 - The Hindu Marriage Act, 1955
Restitution of conjugal provides that where either the husband or the wife has
without reasonable cause withdrawn from the society of other, the aggrieved
party may apply to the District Court by filing a petition for Restitution of
Therefore, it can be seen that the decree of Restitution of Conjugal Right to
be granted, three conditions must be fulfilled:
- The respondent has withdrawn from the society of other without
- The court is satisfied about the statement made in such petition, and
- There is no legal ground why the relief should not be granted.
Constitutional Validity of section 9:
It is to be noted that the Restitution of Conjugal Rights amounts to the
coercive part of the state which violates one's sexual and decisional autonomy
and thereby, infringes / violated right to privacy under Article 21 of the
Constitution of India.
In Gobind vs State of M.P.
, the SC arrives at a judgement that right to
privacy is not explicitly provided under the Constitution of India but can be
implied from Article 21 of the Indian Constitution.
In T. Sareetha vs T. Venkata Subbaiah
, the Court Section 9 is
unconstitutional as it violates Article 21 of the Constitution i.e., Right to
privacy and human dignity. The Court observed that the Restitution of Conjugal
Rights is a matter between husband and wife. Moreover, the State should not
interfere in such an intimate matter between husband and wife. The Court also
said that the decree of Restitution of Conjugal Right clearly snatches the
privacy of wife or compels sexual cohabitation with her husband against her wish
which would be of great consequences for women.
But, in the case of Harvinder Kaur vs Harmander Singh Choudhry
, the Court
held that Section 9 of the Hindu Marriage Act, 1955 is completely valid. The
same approach was upheld in the case of Saroj Rani vs SK Chadha
. In this
case, the SC overruled the judgment of T. Sareetha and held that the object of
Restitution of Conjugal Rights is to bring cohabitation between the strange
parties i.e., the parties can live together in their matrimonial home amicably.
The Court observed that Section 9 of the Hindu Marriage Act serves a social
purpose as an aid to prevent the breakup of marriage. Hence, it is
Suggestions for Improvement:
Restitution of Conjugal Rights is a highly debatable and a controversial issue.
Some people feel that it serves a social purpose to prevent the breaking up of
nuptials ties. While some say that there is no sense in forcing one party to
have cohabitation with the other unwillingly and against their valuation. This
remedy of Restitution of Conjugal Rights also violates a person's extremely
basic essence i.e., by dictating their decision on who to reside with.
So, the willingness to stay together should be the main criteria that should be
taken into consideration and the party should not be forced by the court's order
to stay together because marriage is believed to be something which is pure and
sacred and when the marriage between the parties is only in name and beyond
repair it is better not to force them to live together unwillingly.
When a person is separated emotionally from another then the marriage become
totally unworkable, emotionally dead and beyond salvage and it is very difficult
to unite them. Thus, the Section 9 of the Hindu Marriage Act should declared as
unconstitutional because in India where the women have generally the status of
chattel of their husband and abandoned by their families after marriage then the
remedy of Restitution of Conjugal Rights forces women to cohabit with their
husband unwillingly or against their wish.
In Justice K.S. Puttaswamy vs Union of India
, a 9 Judge Bench of the SC
delivered that Right to privacy is recognised as a fundamental right under
Article 21 of the Indian Constitution.
Thus, now it is a high time to abolish this provision from the Hindu marriage
Act as it violated the Right to privacy which is the most important fundamental
right of our Constitution, as it results in unnecessary harassment and penal
liability and also misuse of prohibition against her wife. So, it should be
declared as unconstitutional because "A horse can be brought to the water pond
but cannot be compelled to drink."
Award Winning Article Is Written By: Ms.Mehwish Khalil
Authentication No: FB305272651113-23-0223