Restitution of Conjugal Rights and Judicial Separation:-
Section:- 9. Restitution of conjugal rights-When either the husband or the wife has, without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 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.
Explanation-Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
Marriage according to Hindu law is a sacrament. By saying that marriage is a sacrament it means that the primary function of marriage is the performance of religious and spiritual duties by married couple and that the union is a permanent one.
In order to maintain the permanancy of marriage, law provides for the provision of restitution of conjugal rights in the event of one party withdrawing from the society of the other without any reasonable cause. The law seeks to maintain a stability of marital relations and favors all attempts in order to prevent the breakdown of marriage.
Section 9 of the Hindu marriage act provides for the restitution of conjugal rights.
Section 9 states that: When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights land the court, on being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 essential provisions of this section are:
(1) One party has withdrawn from the society of the other,
(2) Such withdrawal is without any reasonable reason,
(3) The aggrieved party applies for the restitution of conjugal rights.
The object of decree of restitution of conjugal rights is to bring about cohabitation between the to estranged parties so that they an live together in the matrimonia house with forcing a person to sexual relationship. Further the degree is granted amity. It does not aim at if the reason for withdrawal is not reasonable. If the court finds that the petitioner is guilty then the decree of restitution of Conjugal rights is not granted. Further, if after the passing of the decree, the parties do not cohabit continuously for one year, then it becomes a ground for dissolution of marriage under section 13.
Reasonable grounds for withdrawal :-
(A) If there exists a ground on which the respondent can claim any matrimonial relief.
(B) If the petitioner is guilty of any matrimonial misconduct.
(C) If the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him.
Husband’s neglect of his wife or the constant demand for dowry is reasonable grounds for the wife to stay at her parent’s place.
Burden of proof:-The initial burden to prove that the respondent has withdrawn from the society of the petitioner is on the petitioner. Once that burden is discharged, it is for the respondent to prove that there exists a reasonable excuse for the withdrawal.
Constitutional validity of Section 9 :-
It has been contended in many cases that Section 9 of the Hindu Marriage Act, 1955, is violative of right to privacy under Article 21. In many cases the wife has stated that the Section is misused by husbands to force the wife into living with them against her wish. In the case of T Sareetha v T Venkata Subbaih the court observed that Section 9 is violative of right to privacy and human dignity given under Article 21 of the Constitution and hence, ultra vires the Constitution. However, this was overruled by the Supreme Court in Saroj Rani v Sudarshan.
Law seeks to provide stability of marriage; it does not force a person into unwanted relations. The decree is passed only when there is an unreasonable withdrawal of society. However, it may be misused by husbands or wives into coercing their unwilling partners into cohabitation. Therefore, it is the duty of the courts to enquire judiciously and order accordingly;