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Restitution of Conjugal Rights: Criticism Revisited

Written by: Saloni Tuteja

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Restitution of Conjugal Rights: Criticism Revisited

Section 1[1] of the Hindu Marriage Act, 1955 embodies the concept of Restitution of Conjugal Rights under which after solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. This right can be granted to any of the spouse.

This section is identical to section 22 of the Special Marriage Act, 1954.[2] The provision is in slightly different wordings in the Parsi Marriage and Divorce Act, 1936, but it has been interpreted in such a manner that it has been given the same meaning as under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

However, the provision is different under the section 32 Indian Divorce Act, 1869 but efforts are being made to give it such an interpretation so as to bring it in consonance with the other laws. The provision under Muslim law is almost the same as under the modern Hindu law, though under Muslim law and under the Parsi Marriage and Divorce Act, 1936 a suit in a civil court has to be filed and not a petition as under other laws.[3]

The constitutional validity of the provision has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court[4] where the Hon'ble High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh,[5] though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan,[6] gave a judgment which was in line with the Delhi High Court[7] views and upheld the constitutional validity of the section 9 and over-ruled the decision given in

T. Sareetha v. T. Venkatasubbaiah.[8]

It is a sad commentary that despite various courts including the Apex Court of the Country upholding the validity of section 9. Many jurists still have doubts with respect to the soundness of this section and demand its abolishment.

Abolitionist's View

The abolitionists argue that it is a remedy that was unknown to Hindu law till the British introduced it in the name of social reforms. Even when the Hindu Marriage Act, 1955 was being passed in the Parliament, there were voices of scepticism regarding the efficacy of this remedy.[9] Sir J. Hannen in Russell v. Russell[10] also vehemently opposed the remedy. Further, they are of the view any law that forces any person to live with another person is contrary to the value of the society.

The remedy openly violates the fundamental right to life, privacy and equality hence is unconstitutional. Further more, there is frequently insincerity in the petitioner's intention. The remedy is blatantly misused to achieve ulterior purposes other than reconciliation, the root cause being S.13 (1-A)(ii) of the Hindu Marriage Act, 1955 and has created an additional ground of divorce. Yet another major problem with restitution petitions is that it is used as a defence for maintenance suits. This remedy has been repeatedly misused, abused and exploited.[11]

Adding more, the procedure prescribed to enforce this decree under Order 21 Rule 32 of Civil Procedure Code, 1908 is also criticized on the ground that in India, where most of the population and especially women (wife) do not have actual possession over any property. In such cases, if a restitution decree is not complied with, then the court is required to ascertain the share of the wife in the property of her husband, when it is not divided and arrive at her share in the property, but this involves cumbersome procedures. Difficulty also arises if the husband does not have a property in his name. Further, it is not correct to think that coercing a person that his property would be attached and sold away can change the attitude of the adamant spouse and make him obey the decree.

Counter View
However, in my opinion, section 9 of the Hindu Marriage Act is one of the most misunderstood sections of the Matrimonial law. Despite the controversy it has continuously been upheld by the Judiciary. Even the legislature through various committees and its reports has supported this section. All the reasons so stated by abolitionists can be easily encountered if this socially benefiting section is read in the right light and its essence is understood. It is imperative that a clear understanding of the section 9 is required because it is often invoked.

First of all, it cannot be said that the concept of conjugal rights and that its embodiment in section 9 is foreign to the Indian culture and society. It may be borne in mind that conjugal rights. Such a right is inherent in the very institution of marriage itself.[12] The only thing is new is the embodiment of this concept which has been prevailing since antiquity.

The prime objective of section 9 is to preserve the marriage.[13] According to the Hindu Marriage Act marriage is a civil contract and a religious ceremony.[14] It is a contract of the greatest importance in civil institutions, and it is charged with a vast variety of rights and obligation,[15] cohabitation being one of them. It is the very soul of marriage and this section enforces the right of cohabitation. If there is no reasonable ground for living apart, the court orders for cohabitation and enforces the Contract there is nothing wrong as the parties had voluntarily stipulated this at the time of entering into the marriage bond.[16]

Section 9, in actuality, is a means of saving the marriage, it is in a sense an extension of sub-sections (2) and (3) of section 23 of the Act which encourage reconciliation by the court. It is the policy of the Act that the parties should live together and assist in the maintenance of marriages.[17] By enforcing cohabitation, the court is serving this purpose of the Act.

Further, it is criticized on the ground that it allows the withdrawing spouse to take an advantage of his own wrong, which is against the scheme of section 23 and allows him/her to apply for a decree in case of non consummation of the marriage within one year of passing of decree. However in Dharmendra Kumar v. Usha Kumari,[18] the Hon'ble Court clearly stated that The expression "in order to be a 'wrong" within the meaning of section 23(1) (a) the conduct alleged has to be something more than mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled to.[19]

It is also often claimed to be gender discriminatory and violative of Article 14.

T. Sareetha case[20] confirmed this view. It is obvious that the judge considered the entire question of restitution from the point of view of the woman. It seems that it has been overlooked that restitution of conjugal rights can also be claimed by the wife. It is relevant to state that the section is gender neutral as by the Amending Act 44 of 1964 either party to a marriage has been allowed to present a petition for divorce on the ground given in section 13(1-A). Even the party found guilty in restitution proceedings is entitled to petition for divorce under section 13 (1-A)(ii). There is complete equality of sexes here and equal protection of the laws.[21] Therefore this claim of abolitionist is incorrect.

Section 9 is also criticized for being an instrument of forced sexual relation and hence being violative of right to privacy guaranteed under Article 21. But much contrary is its purpose. The remedy of restitution aims at cohabitation and consortium and not merely at sexual intercourse.[22] In Halsbury's Laws of England[23] it is observed: (cohabitation) aces not necessarily mean serial intercourse, which the court cannot enforce, so that refusal of sexual intercourse by itself does not constitute refusal to cohabit."[24] In support of this proposition the high authority of Lord Stowell in:

  • Forster v. Forster,[25]

  • Orme v. Orme, [26] and

  • Rowe v. Rowe[27] may be cited. One thing is clear from Lord Stowell's decision in

Forster v. Forster[28] and Halsbury's statement of law that the Court does not and cannot enforce sexual intercourse. In cases like T Sareetha, [29] the concept of marriage is pictured as if consists as if it consists of nothing else except sex. Chaudhary, J.'s over-emphasis on sex is the fundamental fallacy in his reasoning. He seems to suggest that restitution decree has only one purpose, that is, to compel the unwilling wife to "have sex with the husband". This view was discarded long ago in as early as 1924 Sir Henry Duke President in

Jackson v. Jackson[30]To say that restitution decree "subject a person by the long arm of the to a positive sex act" is to take the grossest view of the marriage institution.[31]Therefore, it is fallacy to hold that the restitution of conjugal rights constituted "the starkest form of governmental invasion" of "marital privacy".[32] Further, applying the standard that law has to be just, fair and reasonable as enunciated in

Maneka Gandhi,[33] section 9 said tries to bring the parties together. Whether to grant restitution decree would be just, fair and reasonable in the facts and circumstances of a given case is left to the court to be decided in its judicial discretion. What better guarantee can the law afford for the "inviolability of the body and mind" of the wife and her "marital privacy"[34] And therefore it can be safely stated that section 9 is not violative of Article 21.

It also stated by critique that restitution decree serve as a stepping stone to divorce and is condemned to be a passage or passport to divorce. The reason behind the scheme of putting non consummation of marriage after one year of passing the decree of restitution of conjugal rights under section 13 of the Act is that the Indian Legislature believes that there should not be a sudden break of the marriage tie. It believes in reconciliation and that that cooling-off period is not only desirable but essential.

If the marriage cannot be saved even after passing the decree of restitution it must be dissolved. A factual separation gives an easily justifiable indication of breakdown.[35] That is, under the Act it serves a double purpose. It first finds the fault and where it lies. Secondly it leads to the dissolution of the marriage, if there is no resumption of cohabitation.

Further, recognizing non-consumption of marriage after 1 year of passing of Restitution Decree as a ground of divorce enables the aggrieved spouse to apply to the court for maintenance under section 25; and maintenance pendente lite may also be claimed by making out a case for the same as provided in section 24. This enables a wife, who does not desire disruption of the marriage or even judicial separation from the husband, to secure provision for her support by an order of the court under the matrimonial jurisdiction conferred on it, instead of filing a suit for maintenance under the law relating to maintenance now embodied in the Hindu Adoptions and Maintenance Act 1956.[36]

People who are against the concept of restitution of conjugal rights argue that England which is the nation of origin of the concept has deleted this remedy from its legislation and India is still continuing it. The Law Commission, in their Fifty-ninth Report have- not recommended its abolition nor in their Seventy-First Report of 1978. The Commission was aware that it had been abolished in England under section 20 of the Matrimonial Proceedings Act 1970.

However, it is germane to state that retaining this section all these years is not without reason. The truth is that the legislature has not accepted the breakdown theory in toto, as has been accepted in England.[37] Adding on, a recent writer[38] has suggested that "the opinion of Derrett is more realistic and that the Hindu society is not mature enough to do away with the remedy. Its abolition would be like throwing away the baby with the bath-water."[39]

It is also argued that the methodology adopted in execution of the decree as mentioned in the Code- of Civil Procedure (0-21 Rules 32 and 33) is erroneous as it provides for financial sanction in case of non fulfillment of this decree. It is to be remembered that marriage is also contractual in nature. Providing for a financial sanction in case of non fulfillment of contractual obligation is a common practice. Also that enforcement by attachment of property is provided by court where the disobedience to such a decree is willful i.e. is deliberate, in spite of the opportunities and there are no other impediments. 0 21, Rules 31 and 32 C.P.C. provide only a financial sanction to serve as an inducement by the court to effectuate restitution and serve a social purpose i.e. prevention of the break-up of the marriage.[40]

Often the case of Russel v. Russel[41] is quoted by abolitionist, however the bigger picture as to why Lord Herschell called this remedy as barbarous is not brought in light. What he said and meant was that reasonable excuse, an essential for the decree of Restitution of Conjugal Right, was not confined only to the grounds of divorce. It can as well be "something short of legal cruelty" which might constitute a reasonable excuse for refusing restitution.

What was stated by him was that if the meaning of reasonable excuse was restricted to the grounds, then this remedy shall be barbarous. This is precisely what has been taken care of in India as the history of the Act would show. Section 9(2) as originally enacted provided that "Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce." This created considerable difficulty.

The Law Commission in its Fifty-Ninth Report recommended its deletion. It is now possible for the party to plead a reasonable excuse which may not necessarily be a ground either for judicial separation or nullity or divorce. So the Act was amended and by Act No. 68 of 1976 section 9 (2) was deleted. This brought the law in conformity with the opinion of Lord Herschell. It will, therefore, appear that Lord Herschell's expression "barbarous" was used in a different context.[42]

In summation, it may be stated that the grounds and arguments are baseless and they do not sufficiently prove that the Remedy of Restitution of Conjugal Rights is archaic, barbarous and violative of the basic Human Rights. It cannot be said that this remedy is unconstitutional. Section 9 has sufficient safeguards to prevent the marriage from being a tyranny.[43]In truth, it serves the social good purpose, by promoting reconciliation between the parties and maintenance of matrimonial. It protects the society from denigrating. And all the years that it has been enforce it has efficiently played it's a role.


  1. Section 9 of the Hindu Marriage Act, 1955 reads as follows:- "When either the husband or the wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply, by a 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

  2. After the Marriage Laws (Amendment) Act, 1976

  3. Paras Diwan, Law of Marriage & Divorce, 4th Ed., p. 328.

  4. T. Sareetha v. T. Venkatasubbaiah, A.I.R. 1983 A.P. 356.

  5. A.I.R. 1984 Del. 66.

  6. A.I.R. 1984 S.C. 1562.

  7. Harvinder Kaur v Harminder Singh, A.I.R. 1984 Del. 66.

  8. A.I.R. 1983 A.P. 356

  9. Jaspal Singh, Law of Marriage and Divorce in India , (1983), p.83.

  10. (1897) AC 395.

  11. A reference has been made to Mr. Prashanth S.J, Hindu Women And Restitution Of Conjugal Rights: Do We Need The Remedy

  12. Kondal v. Ranganavaki, A.I.R. 1924 Mad. 49.

  13. Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del. 66.

  14. Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del. 66

  15. Linda v. Belisario (1795) 1 Hag. Con. 216(21) per Sir William Scott at pp. 30, 232.

  16. Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del. 66.

  17. Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.

  18. A.I.R. 1977 S.C. 2218.

  19. Dharmendra Kumar v. Usha Kumari, A.I.R. 1977 S.C. 2218.

  20. T. Sareetha v. T. Venkatasubbaiah, A.I.R. 1983 A.P. 356

  21. Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66

  22. Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.

  23. 12th Vol., 3rd Ed., p. 284.

  24. A reference may be made to Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.

  25. (1790) I Hag. Con. 144.

  26. (1924) 2 Addf 382-162 E.R. 335

  27. (1865) 34 L.J.P. M&A 111

  28. (1790) I Hag. Con. 144

  29. A.I.R. 1983 A.P. 356.

  30. (1924) Probate 19 (2).

  31. Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.

  32. A reference may be made to Harvinder Kaur v. Harmander Singh Choudhry, A.I.R.1984 Del. 66.

  33. Mrs. Maneka Gandhi v. Union of India (UOI) and Anr, A.I.R. 1978 S.C. 597.

  34. Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.

  35. Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Delhi 66.

  36. S.A. Desai, Mulla Hindu Law, Vol. 2, 19th Ed., p. 60.

  37. Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66

  38. R. C. Nagpal, Modern Hindu Law, (1983), p. 110.

  39. Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.

  40. Saroj Rani v. Sudharshan Kumar Chadha, A.I.R.1984 S.C. 1562.

  41. (1897) A.C. 395 (16).

  42. Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.

  43. Saroj Rani v. Sudharshan Kumar Chadha, A.I.R.1984 S.C. 1562.

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