RESTITUTION OF CONJUGAL RIGHTS:- SECTION 9.-
The Hindu Marriage Act, 1955 in its section 9 provides for the restitution of conjugal rights. Conjugal right is a matrimonial right which husband and wife have to each other's society, comfort and affection.
It is, indeed, one of the express conditions of the nuptial vow that each party is to become life associate of the other and enjoy the pleasures and consortium of each other.
SECTION 9 RUNS AS UNDER:
"When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights.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."
Thus under sub-section (1) of Section 9, the husband or the wife may get a decree for restitution of conjugal rights, where the wife or the husband as the case may be:
a. has withdrawn from the society of the other,
b. without reasonable excuse,
c. the court is satisfied of the truth of the statements made in the petition, and there is no legal 'ground why the application should not be granted.
The explanation added to the sections provides that where a question arises whether there has been reasonable excuse for withdrawal from society, the burden of proving reasonable excuse shall be on person who has withdrawn from the society.
Originally there was sub-section (2) also but the same was omitted by Marriage Laws (Amendment) Act, 1976.
SUBSISTENCE OF MARRIAGE-A PRE-REQUISITE.-
The remedy under the section presupposes the subsistence of a valid marriage. Thus, where the parties are not legally married, or the marriage was not subsisting at the time of petition, the question of granting of decree of restitution of conjugal rights does not arise.
It is for the petitioner to prove the validity of the marriage if it is disputed by the respondent.
SMT. RANJANA VINOD KUMAR KEJRIWAL V. VINOD KUMAR KEJRIWAL, (AIR 1997 Bom 380.)
In this case a petition for restitution of conjugal rights was filed by the wife who had admittedly married a husband who was already married to some other lady. In fact, the marriage with her was contracted after suppressing the fact of previous marriage.
But the Court refused to grant a decree of restitution in favour of the wife as the lady who moved to the Court for relief was not a legally wedded wife, in view of the fact that the husband was already married to another woman, prior to this marriage.
WITHDRAWAL FROM SOCIETY---
The expression withdrawal from society means withdrawing from the company of the other spouse and from conjugal relationship.
A duty is imposed upon the spouses to provide each other those amenities which the marital tie renders obligatory.
A husband and wife, though living separately, could maintain a frequent and regular social and sexual relationship thereby treating the marriage as still being in real existence. In such a case there would be no Withdrawal from society. However, on the other hand, there may be withdrawal from society whilst the parties are living under the same roof.
LEELA SHARMA V. KESHAV SHARMA, 1980 HLR 171,
In the court observed that withdrawal from the society is a mental process apart from physical separation.
The mental process should show that the spouse complained against should have made up his or her mind not to discharge his or her obligations without there being any excuse therefor.
PREVIOUS COHABITATION NOT NECESSARY.-
Granting of this remedy does not necessitate the parties to prove that they have at some time cohabited with each other and then separated; in other words, previous cohabitation is not a condition precedent to the commencement of such proceedings.
REASONABLE AND JUST CAUSE.
What is reasonable or just would be decided in the context of facts and circumstances of each case having regard to the position in life of the parties and the general circumstances surrounding their life; no strait-jacket yardstick can be formulated for ascertaining reasonable or just grounds.
The reason for withdrawal from the society must be "grave and weighty" or grave and convincing.
Conduct short of actual matrimonial offence like cruelty and adultery may be sufficient to prove a reasonable excuse within the meaning of this section, but the necessary conduct must be of grave and convincing character.
According to judicial decisions pronounced from time to time several grounds have been held to be reasonable justifications for living separately, e.g.,
refusal to perform marital obligations without sufficient cause, imputing unchastity upon the wife, gravely indecent behaviour, false allegations against each other as to unnatural offence and so on. Where the husband tortures his wife mentally and levels the allegation of flesh-trading against her, she is fully justified to live separately and the husband's petition for the restitution would fail.
KAMAL SINGH V. SMT. BHUPINDRA KAUR,
In above case of the husband moved a petition for restitution, which was resisted by the wife on the plea that he misbehaved and insisted upon the transfer of her entire property in his favour.
The court dismissed the petition on finding the conduct of the husband cruel some and unbecoming.
TULSA V. PANNA,
In above case the husband used to beat his wife as she did not get up early morning to cook food for him and she did not wear clothes according to the desires of the husband. She left his house and refused to go to her husband.
The Madhya Pradesh High Court held that there was reasonable cause within the meaning of Section 9 and the husband was not granted the decree of restitution of conjugal right.
Similarly was held in case of T Srinivasan v. T Varalakshmi.
PRAMILA BALA BARIK V. RAVINDRA NATH BARIK,
In above case the mother-in-law used to misbehave with her in such a way that it became torturous for her to stay there. The mother-in-law used to poison the mind of her son so much so that his relations with the wife became strained and the wife went back to her parental home.
In the petition under Section 9 by her husband,the court held that the wife cannot be compelled to stay in her parents-in-laws house against her wishes under adverse circumstances amounting to cruelty.
SATYA DEVI V. AJAIB SINGH, ( AIR 1973 RAJ 20)
But in above case the court decreed the husband's petition of restitution on finding that there were no grave and weighty reasons for the wife to live separately.
Briefly the facts of the case were that the husband used to keep strained relations with his wife on account of her dark complexion. His behaviour has not been good and he wanted to marry another wife.
The wife left for her parental home to live with her parents. Later on, with the intervention of some arbitrators, their relations improved, and she returned to her husband.
After sometimes she again went away to her father's place and refused to join her husband on the ground of his misbehavior.
On a petition of restitution by her husband, the Court did not find the behaviour of the husband sufficiently unbecoming as to disallow his petition.
The court ruled that the expression "justifiable cause" or "justifications" connote grave and weighty reasons. It is only on account of these reasons that a party could stay away from the company of the other.
HARDEEP SINGH V. SMT. DALIP KAUR,
In above case, where the husband does not agree to live separately from his parents and wife's insistence for a separate home persists as a result of which she chooses to stay away from her husband, the court decreed the petition of restitution of conjugal rights filed by the husband holding that there is no reasonable excuse for the wife to live separately on the alleged grounds.
KANTI MALI V. PAMESHWAR AIYYAR, (AIR 1974 KERELA)
Similarly in the Kerala High Court turned the plea of reasonable excuse where she insisted on establishing a home, separate from her old aged father-in-law particularly when no hinderance to her marital life is caused.
RAVINDRA NATH BARIK V. PRAMILA (AIR 1979 ORI)
In above case, the wife pleaded in the petition held by her husband under Section 9 that his father often ill- treated her by indulging in torturous behaviour and for this reason his petition be rejected. There it is noteworthy that the wife's grievance was against her father-in-law but not against her husband, but still the court rejected the petition and ruled that the wife's separate residence was justified.
MOHINDER SINGH V. PREET KAUR, (1981 HLR 321)
In above case the husband became totally blind due to eye-injury in an accident after six months of his marriage and thereafter the wife withdrew from the society of the husband on the plea of his blindness.
It was held that the wife had a reasonable excuse to withdraw from the society of the husband. Consequently, the restitution of conjugal rights was refused.
CASES OF CONFLICT BETWEEN JOB AND MARITAL OBLIGATIONS
In view of changing socio-cultural environment, a quite good number of women are coming forward to take up jobs, which occasionally leads to a situation wherein a conflict arises between her job and marital obligations.
The question that arises thus, is whether taking up of a job by a wife, at a place other than that of her husband, amounts to desertion and her withdrawal from the society of her husband without reasonable excuse and whether the husband could get a decree of restitution of conjugal rights?
KAILASHWATI V. AYODHIYA PRAKASH
This matter came up for decision Kailashwati v. Ayodhiya Prakash in which the Punjab and Haryana High court held that wife is under an obligation to live with her husband in his home and under his roof except in case of distinct and specific misconduct on the part of the husband.
Where the wife against the wishes of her husband accepts employment away from the matrimonial home and unilaterally withdraws therefrom, she would be violating the mutual obligations of husband and wife to live together.
MIRCHULAL V. SMT. DEVI BAI (RAJASTHAN HIGH COURT)
SHANTI NIGAM V. R.C. NIGAM (ALLAHABAD HIGH COURT)
In Mirchulal v. Smt. Devi Bai, the Rajasthan High Court and Allahabad High Court in Shanti Nigam v. R.C. Nigam however took a more liberal view.
The Rajasthan High Court in Mirchulal v. Smt. Devi Bai, observed that if under compelling circumstances, a wife has to live away from husband, in such situation it cannot be said that she has withdrawn herself from the society of her husband.
The Madras High Court in N.R. Radha Krishna v. Dhana Lakhmi and the Gujarat High Court in Pravinaben v. Suresh Bhai, also expressed the same view by holding that a wife, living separate from her husband by taking up a job somewhere else owing to financial exigencies or by an implied and mutual arrangement arrived at by her and her husband, cannot be said to have withdrawn unreasonably from her husband's society.
SMT. SWARAJ GARG V. K.M. GARG.
The High Court of Delhi pronounced an important judgment in the case of Smt. Swaraj Garg v. K.M. Garg.
In this case the husband and wife were gainfully employed at two different places from days before their marriage and a question arose with respect to matrimonial home after the marriage.
It was a matter of chance that the husband, although well qualified did not get a satisfactory job and was drawing a pay packet of lesser amount than that of his wife.
The parties to marriage either before the marriage or at any time after it, did not discuss nor came to an agreement as to where their matrimonial home would be after the marriage.
The wife even after the marriage continued to live at the place where she was working although she had come twice to Delhi to live with him where the husband was serving.
The husband filed a petition for restitution of conjugal rights against his wife on the ground that she had withdrawn from his association without reasonable excuse within the meaning of section 9 of the Act.
The trial court dismissed the petition but the Single Judge bench allowed the appeal and granted the restitution.
Against that decree the matter was brought before a division bench. Mr. Desh Pande, J. while dismissing the decree of restitution of conjugal rights observed:
"At the present numerous women have taken up jobs to help their family and also to be useful members of the society, it may be that the wife is financially and in other respects better situated to choose the place of matrimonial home than the husband.
There is no warrant in Hindu law to regard a Hindu wife as having no say in choosing the place of matrimonial home.
Article 14 of the Constitution guarantees equality before law and equal protection of law to the husband and wife.
Any law which would give an exclusive right to the husband to decide upon the place of the matrimonial home without considering the merits of the claim of the wife would be contrary to Article 14 and unconstitutional for that reason."
