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Restitution of Conjugal Rights

Section 9 of the Hindu Marriage Act, 1955

Every Spouse is entitled to the association and companionship of the other and the Indian legislature, to correct any 'unreasonable departure' from such matrimony, has provided statutory relief's under:
  • Section 9, The Hindu Marriage Act, 1955
  • Section 22, Special Marriage Act, 1954
  • Section 32, Indian Divorce Act, 1869
  • Section 36, The Parsi Marriage and Divorce Act, 1936

Section 9, The Hindu Marriage Act

Restitution of Conjugal Rights:

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with 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. A.1 Essential Conditions of Section 9, HMA, 1955:
  • Withdrawal from the society of the petitioner, by the Respondent.
  • Such withdrawal is without any reasonable cause or excuse.
  • The court is satisfied regarding the truth of the claim made in the petition.
  • There exists no legal ground for refusal of the relief.

A.1.1 What does withdrawal from society means?
‘Withdrawal from society' does not necessarily have to mean complete desertion or living separately. It can also mean-
  • Withdrawal from Sexual intercourse
  • Non-co-operation in the performance of marital obligations.
  • Intention to abandon indefinitely
  • Cessation of cohabitation by a voluntary act of the Respondent

A.1.2 Which party Onus of proof lies on?
The burden of proof in conjugal rights is two-fold.
  1. First, the petitioner has to prove that the wife has withdrawn from his society.
  2. Secondly, it shifts to the respondent for doing so. The onus lies on the respondent to prove that his/her act was reasonable and not illogical.

A.1.3 Under what circumstances is the respondent’s withdrawal from the society of the petitioner justified?
Remarriage of Petitioner. (Husband loses the right to restitution of conjugal rights on both wives)
When the conduct of the petitioner makes it impossible for the respondent to live with the petitioner.
  • Cruelty
  • Adultery

A.2 Limitation period of restitution of conjugal rights.
Order or decrees passed under the Hindu Marriage Act as well as by the Family Court would have application under Article 137 of Limitation Act. 1973.
All the orders or decrees passed under HMA would have the same effect as any order or decree passed under the Code of Civil Procedure.

Relevant Sections Of The Hindu Marriage Act In Light Of RCR
S. No. Sections With Title Meaning Of The Section
  1. Section 9
    Restitution of conjugal right. If either of the spouses withdraws themselves from the society of the other, without reasonable excuse, the other aggrieved party has a legal right of filing a petition demanding the restitution of conjugal rights.

    The court can grant a decree of the same on being satisfied by the truth of the petition and in case no legal ground restricting them to do so.

    In case of a reasonable excuse for withdrawing themselves from the household, the burden of proof lies on the person who has withdrawn from society.
     
  2. Section 21 (A)
    Transfer of Petitions If two petitions have been filed by both the parties in different District Courts, then the petition filed later would be transferred to the district court where the petition has been filed earlier.

    It would be the duty of the Court or Govt. authority responsible under the Code of Civil Procedure.
     
  3. Section 21 (B)
    Special provision relating to trial and disposal of petitions under the Act. Trial of the petition under the act to be continued from day to day until it's the conclusion and if the court adjourns the trial beyond the following day, reasons for the same are to be recorded.

    Every petition to be concluded within six months from the date of service of notice of the petition on the respondent.

    Every appeal under the act is to be concluded within three months from the date of service of notice of appeal on the respondent.
     
  4. Section 21(C)
    Documentary evidence No document is to be declared inadmissible in evidence under this act on the ground that it is not duly stamped or registered.
     
  5. Section 22
    Proceedings to be in camera and may not be printed or published
    Every proceeding has to take place in camera.
    If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees.
     
  6. Section 23 (A)
    Relief for respondent in divorce and other proceedings This section allows the respondent to set up a counter-claim for relief under the act.

    The provisions of counterclaim are given under CPC order 8 rule 6G.

    In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the grounds of petitioner's adultery, cruelty, or desertion but also make a counter-claim for any relief under this act on that ground. If the petitioner's adultery, cruelty, or desertion is proved, the court may give to the respondent any relief under this act to which he or she would have been entitled to if he or she had presented a petition seeking such relief on that ground.
     
  7. Section 24
    Maintenance pendente lite and expenses of proceedings Can be claimed during the pendency of the litigation.
    Application is necessary for interim maintenance or expenses of the proceedings.
    Either husband or wife who has no sufficient income for support or necessary expenses of the proceeding, the petitioner can apply to the court and if the court may think it is reasonable and the respondent also has sufficient income, the court can order the respondent to pay the expenses of the proceedings and monthly expenses during the proceeding.
    This section is non-appealable because interim relief is granted under this, during the proceedings.
    The application of payment of expenses shall be disposed within sixty days from the date of service of notice on the wife or the husband, as the case may be.
     
  8. Section 25 (1), (2), (3)
    Permanent alimony and maintenance Refers to the payment of maintenance by one spouse to the other for his/ her maintenance and support for the lifetime of the spouse.
    Gives the power to the court to award permanent alimony and maintenance while passing any decree (From S. 9- 13) or any at any time after that.
    Amount of permanent alimony and maintenance can be –
    A lump sum amount or
    Monthly or periodic payments
    The court may modify or rescind any such order of maintenance whenever there is a change in the financial condition of any party.
    The court may rescind or modify the order of maintenance if it gets proof of remarriage or adultery of the claimant.
     
  9. Section 26
    Custody of children An application for custody has to be made within the case petition pending in the court under the HMA.
    The court can pass interim orders and make such provisions in the decree regarding custody, maintenance, and education of minor children taking into consideration the wishes of the children wherever possible.
    The court can revoke, suspend, or vary any previous orders and provisions previously made.
    The application is to be disposed of within sixty days from the date of service of notice on the respondent.
     
  10. Section 27
    Disposal of property The court may make any provisions in the decree during the proceedings as it may deem proper regarding any property which is presented, at or about the time of marriage which may belong jointly to both the husband and wife.

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