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Restitution of conjugal rights under Hindu Law

The fundamental rule of matrimonial law is that the spouses must live together. Each spouse is entitled to consortium of the other spouse. The remedy of restitution of conjugal rights is open to both the spouses as against the other. The remedy aimed at preserving marriage and not at dissolving it as in the case of judicial separation or divorce. A decree of restitution of conjugal rights could be passed in case of valid marriages only. Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights.

Section 9 of the Act reads as, “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.”

Essentials of petition of restitution of conjugal rights
The person seeking restitution must establish that:
a) The other spouse has withdrawn from his or her society;
b) Such withdrawal is without reasonable excuse;
c) There is no legal ground disentitling the petitioner from the relief of restitution of conjugal rights.

Grounds on which the petition of restitution of conjugal rights can be rejected
First, if the respondent has a ground on which he or she can claim any matrimonial relief;
Second, if the petitioner is guilty of any matrimonial misconduct;
Third, if the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him; for instance, husband’s neglect of his wife or the constant demand for dowry, etc.

Burden of Proof                                                   
Firstly, burden of proof is on the aggrieved/petitioner who needs to prove that the respondent has withdrawn from his society. Once that burden is discharged by the petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the withdrawal.

Execution of the decree
The execution of decree restitution of conjugal rights is as per the Rule 32 of Order 21 of the CivilProcedure Code, 1908, whereby, if a respondent has failed to obey such a decree, the court may, in the execution of the same, attach the property of the respondent, and if the respondent fails to comply to the decree within a year then the court may even sell the property and award such compensation to the petitioner as it thinks fit.

Landmark Cases
T. Sareetha v. T. Venkata Subbaiah [Andhra Pradesh High Court 1983] – In this case the High Court held the section ultra vires since it offended Articles 14 and 21 of the Constitution.

Saroj Rani v. Sudarshan Kumar [Supreme Court 1984] – The SupremeCourt upheld the constitutional validity of the Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah.

Vijay Kumar v. Suman [Punjab & Haryana High Court 1996] - Persistent demand for dowry or causing physical and mental torture was held to be a reasonable cause for the wife to withdraw from the society of the husband

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