RESTITUTION OF CONJUGAL RIGHTS

Restitution of Conjugal Rights

What are Conjugal Rights?

Conjugal rights mean the right to stay together. The right of sexual intercourse between the husband and the wife. This is considered the conjugal rights. The Hindu Marriage Act, 1955 Section 9 says if either the husband or the wife, without a solid explanation, withdraw from the society of the other. The aggrieved party may request the court for restitution of conjugal rights.

What is Restitution of Conjugal Rights - (Right to stay together)

If either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights

The decree of restitution of conjugal rights cannot be executed by forcing the party who has withdrawn from the society from the other to stay with the person who institutes Petition for restitution. The decree can be executed only by attachment of the properties of the judgment debtor. The practice has shown that the decree of restitution is a paper decree.

However, if the decree of restitution of conjugal right is not honored for a period of more than one year, subsequent to the date of the decree, it becomes a ground for divorce.

What are the legal provisions on restitution of conjugal rights in India?

The different personal laws in India contain the provision of restitution of conjugal rights. The general wording in all these acts provides that if either the husband or the wife withdraws from the society of the other, without reasonable excuse, the aggrieved party may approach the Court for restitution of conjugal rights. Provisions for restitution of conjugal as per different personal laws are as follows-

S.9, Hindu Marriage Act, 1955
S.22, Special Marriage Act, 1954
S.32, Indian Divorce Act, 1869
S.36, The Parsi Marriage and Divorce Act, 1936

What is Section 9 in The Hindu Marriage Act, 1955

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 When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.

There are three important requisites to be fulfilled for Section 9

Spouses must not be staying together.
Withdrawal of a party from the other must have no reasonable ground for such withdrawal.
The aggrieved party must apply for restitution of conjugal rights.

What is the provision under Muslim law?

The concept of restitution of conjugal rights is conceptualized in the form of a civil suit, under general law, as opposed to a separate petition in other laws, as follows-

“Where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of the marriage, the court may decree restitution of conjugal rights, and may put either part securing to the other the enjoyment of his or her rights.”

Who can file a petition for the Restitution of Conjugal Rights?

The petition for the Restitution of Conjugal Rights can be filed by either party- either by husband or wife.

On What Grounds, The Court Can Pass The Order Of Restitution Of Conjugal Rights?

If the petitioner proves in the court that the respondent (spouse) withdrawn from his/her society without giving any reasonable excuse.

The statement presented by the petition (aggrieved spouse) in his or her petition is true; and

The court did not find any legal ground, that is, why the aggrieved party should not be given the restitution of conjugal rights.

Basis on which petition for Restitution of Conjugal Rights can be rejected

If the respondent is capable of claiming any matrimonial relief.
If the petitioner accepts that he has committed any matrimonial misconduct.
If the petitioner’s action makes it impossible for the respondent to stay with him.

How to file for restitution of conjugal rights?

When a spouse feels aggrieved because the other denies cohabitation with him/her and denies to provide him/her the companionship and intimacy that marriage offers, then the said spouse can file a petition in the court for restitution of conjugal rights. Yes, it does sound kind of patriarchal that a spouse, which in a majority of cases are women, needs to cohabit with the other spouse against her wishes but we are dealing with a law formulated in the year 1955. So for now, let us see the steps involved in a petition for restitution of conjugal rights.

1. Contact the best divorce/family lawyer

No points for guessing because it is obvious that you cannot proceed with a court case without having the backing of the best family/divorce lawyer. It is important that you contact the best family lawyer in the city in order to get the best advice and a possible legal route.

2. Where do you want the file the case?

It is an unskippable step. You must decide under which jurisdiction the case has to be filed. One cannot file a case randomly at whatever location they want as jurisdictions are predefined in the law that governs them. Under the Hindu Marriage Act, 1955, all petitions whether it is contested divorce, uncontested divorce, judicial separation, child custody, maintenance, restitution of conjugal rights or annulment, can only be filed in either of the following four places:

Where the marriage was solemnised;
Where you and your spouse last resided together;
Where the wife is presently residing; and
In the case of presumption of death, where you are presently residing. Provide your lawyer all the details:

3. Provide your lawyer all the details

Yes, as they say, you should hide nothing from your lawyer and they are right. Hiding details concerning the case from your lawyer will bring no good to you and whatever you say is protected under the attorney-client privilege. You are required to spare no details concerning the case and provide your lawyer with all the documents regarding the same. This helps your lawyer in building a strong case from the very start and give you the needed boost.

4. Maintenance in the restitution of conjugal rights cases

Under the Hindu Marriage Act, 1955, either of the spouse can claim maintenance under Section 24 of the Act. If there is a petition pending before a court for adjudication of a matter under the Hindu Marriage Act, 1955, you can file an application for interim-maintenance under Section 24 of the Act and claim maintenance from your spouse till the finality of the case.

5. You have the onus to prove

Since you have filed a petition for restitution of conjugal rights, you need to prove in the court that your spouse has refused to cohabit with you without any reasonable excuse while your spouse has to prove that he/she left the matrimonial home on the basis of certain compelling circumstances. At the end of the case, the court will weigh whose evidence was more persuasive and a decree will be passed accordingly.

6. Passing of the decree

After the evidence has been led and the arguments have been addressed, the court passes the decree. Once a decree is passed, you can easily obtain a certified copy of the decree from the court after payment of the requisite fee.

Documents required for restitution of conjugal rights

Address proof of the petitioner
Identity proof of the petitioner
Proof of marriage
Photo of the petitioner
Any document to confirm the jurisdiction of the court

+91-8805059008 | +91-8605059008 | help@sheandhelaw.com

RESTITUTION OF CONJUGAL RIGHTS