It is to be noted that marriage and family are two vital institutions of
society. The value of both increased when we see it from the perspective of
Indian tradition. Both these institutions are considered purely sacred. To be
precise, in our country marriage is not just a contract between two parties, it
is an institution that connects two families for the evolution of our society
and our country. Through marriage, several families come into being and come
together as well so it can be said that family is nothing but a subset of the
marriage. But as time evolved, the pace of life also increased.
Nowadays, people don’t have much time for their families. As a result of which
there started being a lack of harmony, lack of beliefs, lack of sacredness from
such institutions. The last decade had been the prime witness of the
above-mentioned statement and one can easily observe that the numbers of
Matrimonial Disputes are continuously going up in our country.
generation will be very surprised to know that earlier matrimonial disputes were
not a common thing in our country and weren’t of much importance. But as time
evolved, a new perspective of law has been formed where several alternative
methods are adopted to solve the disputes related to marriage. Owing For these
reasons it is very necessary to study and analyze the topic.
The author through this article attempt to analytically criticizes the concept
of Restitution of Conjugal Rights, a matrimonial remedy available for the
persons belonging to the Hindu religion under the Hindu Marriage Act of 1955 by
analyzing the previous precedents decided by the Hon’ble Supreme Court relating
to the issue of conjugal rights. The author will elucidate upon the same by
discussing the object, scope, and the extent of applicability of Section 9 of
the Hindu Marriage Act, 1955.
In India, marriage is not just an institution that arises out of contractual
liability of two persons, say husband and wife instead it is an institution that
connects two families, two sects, two customs, two beliefs together in a bond.
It gives rise to more and more relations. It also gives rise to certain sets of
obligations towards each party. These sets of rights and obligations are
collectively termed as Conjugal Rights
. In simple words, conjugal rights
referred to the right granted to both the partner to stay together after their
As we know, in India the marriage comes under personal law and every
community has its own customs, beliefs, procedure, rights, and obligations to
carry forward the institution of marriage. The above-mentioned conjugal rights
are defined under Section 9 of The Hindu Marriage Act, 1955 for the marriage
performed under Hindu rites and customs. The concept of conjugal rights is of
utmost importance when two persons get into the institute of marriage as any
contract without certain rights and obligations cannot be treated as a good
Under the Hindu traditions and customs, it is a commonly accepted belief that a
married couple has to be the support system of each other during hard times,
have to be present, and show love and affection towards each other. As the time
evolved, the court and judiciary started taking the matrimonial matters quite
seriously and the marital union became a common nation-wide notion instead of a
belief of a certain family or sect.
The judiciary started interfering in marital
matters whenever required. In 1955, when the Hindu Marriage Act came into being,
there included a provision of restitution of conjugal rights in the act.
According to that provision, if any of the spouses leaves the other without any
sufficient cause, then the aggrieved party can approach the door of the
judiciary in search of justice. And it is the duty of the judiciary to provide
the relief to aggrieved party after going through the facts and circumstances of
Section 9 of the Hindu Marriage Act, 1955 deals with the Restitution of Conjugal
Rights. It stated:
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 the application should not be granted,
may decree restitution of conjugal rights accordingly.
In other words, it simply stated that when either of a partner has no just and
reasonable cause of staying away and is staying away from the other partner, if
the petition of the restitution of conjugal rights has been filled by the
aggrieved partner then both the partners would be ordered to stay together if
the Court deemed fit. Hence it can be concluded that the above-mentioned section
is basically a provision of saving the marriage.
For the first time, this
provision was applied several years ago in England and later on, introduced by
the privy council in India in a case namely, Moonshee BazloorRuheem v.
. However, it is very interesting to know that the
provision of restitution of conjugal rights have been removed in England way
back in 1970 but we are still following this provision in our country till
There are three important requisites to be fulfilled for Section 9
- The husband and the wife must not be staying with each other anymore.
- The separation of a partner from the other partner must not have any
reasonable ground for such separation.
- The aggrieved party must apply for restitution of conjugal rights before
the court of law as prescribed under the section.
The main questions of law that the judiciary generally observe while handling
the cases of the restitution of conjugal rights are, ‘What if restitution of
Conjugal Rights violate any Fundamental Right of either spouse?’ and ‘Can
Conjugal Rights be treated above the Fundamental Rights?
In the case of Kharak
Singh v. State of U.P
. the conjugal rights were violating the right to
privacy of the wife was and the Hon’ble court stated that the right to privacy
is an essential ingredient of personal liberty. Further, in the case
namely, Gobind v. State of M.P
. again the same contention of the right to
privacy came into picture as it was raised in the case of Kharak Singh. In this
case, the Hon’ble Supreme Court came to a the conclusion that the right to
privacy is one of the other rights included under right to liberty.
It is a very surprising fact that in the case namely, T.Saritha Vengata Subbiah
, the hon’ble court held that section 9 of the Hindu Marriage Act
which talks about the restitution of conjugal rights is not constitutional in
nature because this provision clearly violates the right to privacy of wife by
forcing her to live with her spouse against the wish of the former.
the case of Harvinder Kaur v. Harminder Singh
, the judiciary overturned the
judgment given in T.Saritha Vengata Subbiah v. State
and returned to its
initial approach by stating Section 9 of the Hindu Marriage Act as completely
constitutional in nature. The ratio of this case was upheld by the court
in Saroj Rani v. S.K. Chadha.
From the above judicial analysis this can be concluded that there is no hard and
the fast rule when it comes to grating the restitution of conjugal rights and
the judiciary cannot grant either party the restitution of conjugal rights just
by relying on Section 9 of the Hindu Marriage Act. The judiciary has to look the
various aspects before providing restitution of conjugal rights to any party and
this is purely based on a case-to-case basis. The judiciary cannot provide the
remedy under Section 9 just because it was granted or not in any of the previous
After overlooking the various judgments by different courts, it can be concluded
that restitution of conjugal rights mainly violates the three fundamental rights
mentioned under Article 19 and one fundamental right mentioned under Article 21
of the Indian Constitution.
These fundamental rights are mentioned below:
Suggestions And Conclusion
- Freedom of Association – Article 19(1)(c).
- Freedom to reside and settle in any part of India – Article 19(1)(e).
- Freedom to practice any profession – Article 19(1)(g).
- Right to Life and Personal Liberty – Article 21.
From the above article, it can be concluded that restitution of Conjugal Rights
is a highly controversial and subjective in nature. The argument in its favor is
that this provision is of utmost importance to preserve the marriage while the
an argument against this provision is that there exists no reasoning in
compelling the one party to stay with the aggrieved party as they are not more
interested in living with each other.
However, one cannot disagree with the fact that in any matter there always lies
a scope of improving things by tweaking something. Therefore, it is just a
suggestion of the author that The concept of Reconciliation may be tried in
place of the rigid conjugal rights. The author is of the view that the idea
of restitution is very barbaric and harsh in nature, as the concept of forcing
or compelling comes into the picture when we talk about the restitution of
While on the other side the concept of reconciliation is very
polite and mild in nature. The other problem with the concept of restitution is
that there is no guarantee to improve the situation between both parties and as
the unwilful togetherness comes into the picture, it is a high chance that
things may turn ugly despite saving the relationship. But on the other side, if
the concept of reconciliation comes as the remedy then it may not be offensive
to either of the parties and can increase the chances of cleaning the
misunderstanding and may result in a better outcome.
The most important thing is that the judiciary does not need to intervene or
make any changes to implement the above-mentioned suggestions as the concept of
reconciliation is not the primary function of the judiciary. To implement the
above-mentioned suggestions, a separate committee can be formed and the only
function of that committee should be to look over, administer, and solve the
disputes related to marriage. Hence, the concept of reconciliation is able to
save the time of judiciary as well, also it is highly effective, fast, and
practical in nature.
One can easily relate the above-mentioned proverb with the concept of
restitution of conjugal rights. As when a person is emotionally separated from
the other and does not want to live with the latter, then it becomes really
difficult to unite them again. The author is of opinion that restitution of
conjugal rights is such a matrimonial remedy or provision, which will compel the
person to save the marriage against his or her will but it cannot guarantee its
effectiveness. There are also some arguments which state that theory of
restitution of conjugal rights is against the concept of natural law theory.
- Definition of Conjugal Rights, https://www.merriam-webster.com/dictionary/conjugal%20rights,
Accessed on 12 March 2021
- The Hindu Marriage Act, 1955 sec 9.
- Moonshee Bazloor Ruheem v. Shumsoonnissa Begum, 1866-67 (11) MIA 551.
- Restitution of Conjugal Rights: Meaning & Scope, http://www.lawvedic.com/blog/restitution-of-conjugal-rights-meaning-and-scope-50,
Accessed on 13 March 2021.
- Conjugal Rights in India, https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/,
Accessed on 13 March 2021.
- Kharak Singh v. State of UP, AIR 1963 SC 1295: (1964) 1 SCR 332.
- Gobind v. State of M.P, (1975) 2 SCC 148; AIR 1975 SC 1378
- T. Saritha Vengata Subbiah v. State, AIR 1983 AP 356.
- Harvinder Kaur v. Harmander Singh, AIR 1984 Delhi 66.
- Saroj Rani v. S.K. Chadha, AIR 1984 SC 1562.
- Conjugal Rights: NewProspective, http://www.legalserviceindia.com/articles/abol.htm, Accessed on
28 February 2021.
- Kanika Sharma, Restitution of Conjugal Rights: A Pernicious Legal
Transplant, Law and History Review, https://lawandhistoryreview.org/article/kanika-sharma-restitution-of-conjugal-rights-a-pernicious-legal-transplant/,
Accessed on 15 March 2021.