Restitution of Conjugal Rights

Law Family Law
25-May-2022
blog-img

In India, the most necessary implication of marriage is that the partners live together and cohabit. 

What is Restitution of Conjugal Rights?

After the solemnization of marriage, each partner is legally bound to maintain their conjugal life together. If either of the partners abandons the relationship, the aggrieved partner has the right to regain the companionship of the other spouse by filing a petition before the court for resumption of a cohabitation petition. 

In simple words, the Restitution of conjugal rights comprises of two major words, “Restitution” and “Conjugal Right”. 

RESTITUTION means the restoration of something lost and CONJUGAL RIGHT means the right of a husband and a wife in a marriage. 

The idea of the provision is to preserve marriages by enabling the courts to intervene between the parties.

Examples:

  • A (husband) left B (wife) in her father’s home and did not maintain any connection. This instant case will be considered as withdrawing from the society of B. Hence, in these cases, restitution of conjugal rights is allowed.
  • A(wife) was unable to reside with B(husband) due to her employment. In a similar case, Allahabad High Court was of the view that withdrawal by A from B's company is a valid withdrawal and comes under reasonable excuse. And hence, no decree for restitution was allowed.

Who can seek such relief?

Whenever either the husband or wife withdraws from the other's society without sufficient justification, the aggrieved partner may file a petition before the district court for restitution of conjugal rights. The court must determine whether the petition is true and whether there is no legal reason why the application should not be granted.

You may be interested in: GROUNDS OF DIVORCE UNDER THE HINDU MARRIAGE ACT, 1955

Restitution of Conjugal Rights under Hindu Law

Section 9, of the Hindu Marriage Act, 1955 (HMA) provides that when either party withdraws from a relationship without any apparent excuse, the aggrieved party has the right to file a petition before the Family Court for restitution of Conjugal rights. However, to invoke such rights, the below essential elements are required:

  • Valid marriage between the parties;
  • withdrawal from the society of another;
  • without any appropriate excuse/reason

However, there are certain reasonable exceptions u/s 9 of the HMA:

  • Unreasonable ground to get matrimonial relief
  • If the aggrieved party is guilty of any matrimonial misconduct, such conduct does not fall under any ground for divorce under HMA. Still, that misconduct is grave and intense
  • If the aggrieved party is guilty of any conjugal act or misconduct that makes the situation impossible for the other party to live with each other

Restitution of Conjugal Rights under Muslim Law

If the husband abandons his wife or neglects to perform his marital obligations without any good reason, the wife can apply for Restitution of Conjugal Rights. A husband can also apply for Restitution of Conjugal Rights. But the court can refuse to grant an order for the following reasons: 

  • Cruelty by husband or in-laws 
  • The husband's failure to fufill his marital obligations
  • On the husband's failure to pay his dower promptly

Petition for Restitution of Conjugal Rights

The parties are required to approach the Family courts whenever either party wants to re-establish a marriage. The Parties should file a petition considering the jurisdiction of the Family Court by the place of solemnization of marriage, the residence of the parties, present residence, and last residence of the parties together.  

Procedure for Restitution of Conjugal Rights:

1: Filing of the Petition;

2: Filing of the Reply;

3: Presentation of the Petitioner's Evidence;

4: Presentation of the Respondent's Evidence;

5: Arguments;

6: Judgment & Decree

Conclusion 

Divorced couples with litigation over their head should reach family lawyers for the correct advice and understanding of the implications of their actions. Couples should consult a matrimonial lawyer from the beginning of the dispute to achieve a favorable outcome.

Also Read: WHAT IS THE PROCEDURE TO SEEK MUTUAL DIVORCE IN INDIA?

FAQs

1. What are the conjugal rights of a husband?

If a wife either deserts her husband and his society for no apparent reason, the husband can apply for restitution of conjugal rights.

2. How to file a petition for restitution of conjugal rights?

The aggrieved party can file a restitution petition before a Family Court as per the jurisdiction. On filing a petition, a summon will be sent to the other party for his/her appearance and/or response. 

3. What is the difference between restitution of conjugal rights and judicial separation?

Under the restitution of conjugal rights, one of the partners in a marriage withdraws from the society of the other partner without any valid reason. In simple words, one of the partners is not willing to cohabit with the other partners and hence, withdraws. On the other hand, judicial separation could be sought by either of the partners if they do not wish to stay with each other. 

4. Is denial of conjugal rights grounds for divorce?

Conjugal rights in itself is not a ground for divorce, however, one can get a divorce if he/she establishes cruelty or any such reason before the court. 

5. What is a restitution notice?

A legal notice is sent by the aggrieved party to the other party either asking the reason for such withdrawal or to return to the marriage.

6. What are the grounds for the execution of restitution of conjugal rights?

Where a husband or a wife deserts or without lawful cause ceases to cohabit with the other partner, the party so deserted may sue for the restitution of his or her conjugal rights. The Court on being satisfied with the allegations contained in the plaint may proceed to pass a decree of restitution of conjugal rights. 


Author Bio: Adv. Shreya Srivastava has been practicing at the Hon’ble Supreme Court of India and other forums in Delhi NCR. She has an experience of over 5 years in active litigation. As a young professional, she thoroughly enjoys exploring the diverse fields of law and throughout her career, she has challenged herself to appear and assist in a wide range of cases, including matters relating to Copyright Law, Service Law, Labour Law, Property Law, Arbitration, Environmental Law and Criminal Law with equal zeal and curiosity. Her academic journey and professional experiences have inculcated a solid foundation of legal principles but also the ability to quickly work out the requirements of each case. She is capable of multitasking and effectively communicating with clients. She strongly believes that apart from her strong work ethic, her patience and ability to thoroughly read and understand lengthy documents is her strength which sets her apart.