[iii]Asfaq Qureshi v. Aysha Qureshi, 2010 SCC OnLineChh 63. A husband or wife can file a petition for restoration of their rights to cohabit with the other spouse. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by Petition to the District Court, for restitution of conjugal rights. The PIL claimed that the legislative provisions providing for restitution of conjugal rights was hence unconstitutional. The ground for withdrawing from other’s society must be unreasonable. In old times there was no law regarding the restitution of the conjugal rights, it was first introduced in Jewish law. Most of the time there remained no emotional attachment between the couple, the decree merely became the responsibility towards each other. Edited by Shikhar Shrivastava(adsbygoogle = window.adsbygoogle || []).push({}); [i]Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90. NATURE OF SUIT FOR RESTITUTION OF CONJUGAL RIGHTS Since the marriage under Muslim law is a contract, the suit for restitution of conjugal rights is a civil suit and is filed under Section 9 of the Civil Procedure Code. But the wife complained that her father-in-law had an evil eye upon her and his husband used to beat her. Constitutionality of remedy of restitution of conjugal rights provided under Sec 9 of the Act. Therefore, a wife who does not want the disruption of marriage can get maintenance from her husband directly through these provisions even without actual dissolution. Like for instance, a husband has an obligation to maintain his wife whereas the wife has an obligation to maintain the house hold. Husband had filed the petition under Section 9. Therefore, after the solemnisation of the marriage if either of the spouses without reasonable reason refrains from fulfilling his/her duty against the other spouse then the latter has a legal right to file a petition for restitution of conjugal rights. A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Respondent wife contested the suit by submitting her written statement and also for getting her counter claim. Under the, Provisions for restitution of conjugal rights is given, Therefore, this concept under Muslim Law is directed towards securing the spouse his/her legal rights. The ceremony of Saptapadi in a Hindu marriage imposes certain rights and duties upon both the husband and the wife that they have against each other. Therefore, a wife who does not want the disruption of marriage can get maintenance from her husband directly through these provisions even without actual dissolution. The petition filed by husband, Petition No. A petition for restitution of conjugal rights can be filed with a Family court that has jurisdiction over the area where-The marriage ceremony was performed. These rights and obligations are equal in some respects to both the spouses but unequal in some other respects. The petition filed by the wife under the provisions of Section 9 of the Act for restitution of conjugal rights stands dismissed. Enter your email address below to subscribe to LEGALREADINGS newsletter. Therefore she withdrew herself from his husband’s society. Since the person is compelled to live with the other, it also infringes the right to settle in any part of the country. There seems to be another reason also: the husband can frustrate the wife’s petition for restitution of conjugal rights at any time by pronouncing divorce on her. The right to privacy has been implicitly provided under Article 21 of the Constitution. In Saroj Rani v. Sudarshan Kumar Chadha[i], Hon’ble Supreme Court while validating the constitutionality of Section 9 of the Hindu Marriage Act dealing with restitution observed that in cases of restitution of conjugal rights the respondent spouse (here the husband) becomes liable as per court’s order should cohabit with the aggrieved petitioner and fulfil his marital obligations.eval(ez_write_tag([[250,250],'lawtimesjournal_in-medrectangle-4','ezslot_13',112,'0','0'])); Provisions for restitution of Conjugal Rights under Hindu Marriage Act, 1955 and Special Marriage Act, 1954, Provision for restitution of Conjugal Rights under the Hindu Marriage Act, 1955 is given under S. 9 whereas under the Special Marriage Act, 1954 it is given under Section 22. This restitution of conjugal rights can be filed only under personal laws. Article 21 of the Constitution guarantees protection of life and personal liberty. They are bound to fulfil their obligations to have a healthy marital life. Once he/she proves his/her case, the burden shifts over the respondent to prove the reasonability of his/her excuse. LegalRedings, Ranked Under Top 100 Indian Legal Blogs By FeedSpot, There will be situations where one party wants to end the matrimonial relation but the other party wants to be committed and cohabit. Provisions for restitution of conjugal rights are also given under Section 22 of the Special Marriage Act and also under Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908. Equality between husband and wife implies equality of thought, actions and self-realization and not physical equality and women shall not be forced to go and live in a place from which she has withdrawn. The wife filed a transfer petition in the first week of July, 2019, followed by a petition for restitution of conjugal rights before the Family Court, Saket, New Delhi on July 15, 2019. The brief but relevant facts of the case are that petitioner filed a suit for restitution of conjugal rights vide Case No.315/FC dated 19-9-2007. This was again ratified in the case of Sushila Bai v. Prem Narayan[iv], wherein the court gave an order of restitution and confirmed the above essentials as a ground for restitution. The Constitution has given the fundamental right to have freedom of association according to his or her wish but this right gets infringed by the restitution of conjugal rights because this remedy prevents the person to get associated with another person and to live with the person who has filed for such remedy. But the imposition of restitution of conjugal rights forces one of the parties against their will to live with another depriving the person of privacy and personal liberty. [iv]Sushila Bai v. Prem Narayan, AIR 1986 MP 225. The Blog aims to publish short academic articles alongside commentary on contemporary and recent emerging socio-political issues falling within the spheres of law. The decree of restitution of conjugal rights can be enforced through coercive measures in the form of attachment of property when the party complained against wilfully disobeys the decree and could also be punished for contempt of court. It is to be noted here that maintenance under these provisions could be sought for even in cases where the action concerning maintenance is still pending. Society accepts the relationship between two individuals only if they are bound in the sacred relations. I am Pratyush Pandey, a law student from the Rajiv Gandhi National University of Law, Patiala. The husband filed a petition under the section 9 of the Hindu marriage act, 1955 seeking for remedy restitution of conjugal rights. Keywords: Restitution of Conjugal Rights, Constitution, Equality, Fundamental Rights. Infringement of such a right can be seen in the case of. Husband and wife must not be living together. Determination of husband entitlement to divorce when petitioning of restitution of conjugal rights was filed by the wife. provides for the Restitution of Conjugal Rights. This concept is even under Muslim Law which according to Tayabji is as follows –. The judgment was passed against the wife as the marriage of the petitioner and the respondent was not legal marriage. The reason behind such an assumption of writers would be that they considered the fact that in most of the cases the petition for restitution of conjugal rights, is filed by the husband. Each wife has the right to the other’s consortium for convenience. Unlike most of the countries, in India, marriage is considered to be the most sacred bond not only between two individuals but also their families. In Jagdish Lal vs Smt. By a bare reading of the phrase, even a layman can understand that it means “the restoration of the marital rights”. The concept of Restitution of Conjugal Rights in Muslim Law was explained in the case of, Essentials to file a suit for Restitution of Conjugal Rights. The following are the essentials for the application of Section 9: The above mention has been observed in various cases, including Sushila Bai v. Prem Narayan [1] wherein the husband left his wife to her parents home and asked to come back when called for, over which the wife had filed a case under Section 9 and the court had granted the decree after observing that there existed no reasonable cause for withdrawal from his society. The judgment was passed against the wife as the marriage of the petitioner and the respondent was not legal marriage. There would be differences in the opinion or clashes among the thoughts which sometimes can get so entrenched that it would result in judicial separation and divorces. In Asfaq Qureshi v. Aysha Qureshi[iii], the Chhattisgarh High Court held that in cases of conversion followed by a marriage where conversion was improper, decree of restitution of Conjugal Rights cannot be given because the marriage is itself null and void. Under Hindu Law, marriage is considered as the most sacred ceremony. Once he/she proves his/her case, the burden shifts over the respondent to prove the reasonability of his/her excuse. It had its origin in the feudal English Law but was later abolished in the 1970s. In. In this case, a suit for the restitution of conjugal rights was filed by Hindu husband. Who can seek maintenance under section 125 of the CrPC? This was also ruled out in the case of. [vi]Seema v. Rakesh Kumar, (2000) 9 SCC 271. That the court is satisfied with the petitioner’s arguments. Parties to a marriage have great aspirations for their married life but many times things don’t work and the parties have to go for a divorce. One of these obligations is that both spouses will cohabit with each other. The Supreme Court, in Saroj Rani vs Sudarshan Kumar Chadha [10], dealt with the issue and approved the Delhi High Court’s decision in Harvinder Kaur vs. Harmender Singh Chowdhary. it was held “where the wife refuses to resign her job which compels her to live away from her husband and join him, it cannot be said that she has not deserted him or has not withdrawn from his society without a reasonable cause and that the application of the husband for restitution of conjugal rights cannot be dismissed merely because she has expressed a desire that the marriage should continue and also consented to visit the husband and to allow him to visit her occasionally. The court after hearing the petition and on being satisfied with the petitioner may pass a decree of restitution of conjugal rights. A-66/09 is hereby allowed. However, there comes a time when some of the marriages would not result as what it was thought to be. On appeal by the wife, the decree of the trial court was upheld Political Asylum: National Security Compromise or Helping Hand in Need. – It was held that Sec 9 is not violative of Article14 and 21 of Constitution. Conjugal or marital rights are the rights assigned to both the husband and wife by virtue of their marriage. But primarily the onus is on the shoulders of the petitioner to prove the wrong done against him. But the execution of the decree of restitution of conjugal rights is very difficult. It states that both the husband and the wife at any point, in time if any of the parties failed or refused to perform his or her duties binding upon him or her without giving any reasonable excuse then, the aggrieved party can seek legal support from the respective district court under the provision of restitution of conjugal rights. A decree of restitution of conjugal rights means that the respondent spouse is ordered to cohabit with the plaintiff spouse and have to fulfil his/her duty against the other. Restitution of Conjugal Rights s. p. Sharma* MARRIAGE ENJOINS some rights and obligations on both the spouses. Where can a party move for a suit for restitution of Conjugal Rights? filed a suit for restitution of conjugal rights under section 9 of the HMA. The judgment was passed against the wife as the marriage of the petitioner and the respondent was not legal marriage. [5]Restitution of Conjugal Rights :A comparative study Among Indian Personal Laws, available at: https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/, Restitution Of Conjugal Rights: Section 9 Of Hindu Marriage Act. The Hindu Marriage Act, 1955 deals with marriage, divorce, maintenance and judicial custody of children among Hindus. Husband had filed the petition under Section 9. The above judgment discoursed from the Delhi High Court’s judgment in the case of Harvinder Kaur v. Harmender Singh Chowdhary[9], as per which: “Under section 9, the court has power to make a decree of restitution of conjugal rights which is the remedy available to enforce the return of a spouse who has withdrawn from cohabitation. 4. Another drawback for application of section 9 is that it must be shifted to arbitration as it would lessen the burden of courts. On failure of performance of marital obligations by husband. In English law, restitution of conjugal rights was an action in the ecclesiastical courts and later in the Court for Divorce and Matrimonial Causes.It was one of the actions relating to marriage, over which the ecclesiastical courts formerly had jurisdiction.. By a bare reading of the phrase, even a layman can understand that it means “the restoration of the marital rights”. Restitution of Conjugal Rights filed by the wife. 1. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. Article 21 of the Constitution guarantees protection of life and personal liberty. Provisions for restitution of conjugal rights is given under Section 9 of the Hindu Marriage Act, 1955, Section 22 of the Special Marriage Act, 1954 and Order 21, Rules 32 and 33 of the CPC, 1908. It implies that the parties to marriage will live together as husband and wife. Section 9 of the Hindu Marriage Act, 1955 in addition to provide for the restitution of conjugal rights also provides for an opportunity to the petitioner spouse to seek maintenance under Section 25 of the Act. [5]Restitution of Conjugal Rights :A comparative study Among Indian Personal Laws, available at: https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/ (last visited on September 10,2020). But certain loopholes sometimes defeat the very purpose for which it has been enacted. In. Laws in the relation of Restitution of conjugal rights are of great importance to the Modern matrimonial laws and here in this article, we will discuss the same. It is to be noted here that maintenance under these provisions could be sought for even in cases where the action concerning maintenance is still pending. The ceremony of, A decree of restitution of conjugal rights means that the respondent spouse is ordered to cohabit with the plaintiff spouse and have to fulfil his/her duty against the other. Thus, these four grounds form the basis of a suit for restitution under all personal laws. Your email address will not be published. in which the Supreme Court held that the petitioner, the wife, was entitled to maintenance from her husband when she was not able to have a decent life on her own. The court in the same case also laid down certain situations which could be taken as a defence in a suit of restitution which is as follows –. Also, I have a great interest in writing, mooting and speedcubing. It is a lifelong bond in which the parties commit themselves to live in unity for all time. The suit is filed for the breach of contract that existed between the husband and wife and for the specific performance. Under the Hindu Marriage Act or the Special Marriage Act restitution is the only remedy which could be availed by a deserted spouse against his/her partner if he/she wants to continue with the marriage. Another case citing the question of reasonable excuse is. The trial court decreed the suit of the husband. As per the provision, 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. But the wife complained that her father-in-law had an evil eye upon her and his husband used to beat her. Section 13(1A)(ii) of the Act provides that in the case when after a decree for restitution of conjugal rights has been granted and thereafter, for more than one year, the decree has not been applied by the parties involved, the parties are entitled to apply for divorce. in which husband had appealed for section 9. It was held that, under Hindu law, marriage besides being a contract is a sacrament. The beginning of a social reform- Child Marriage Restraint Act, Delhi HC seeks Delhi Police response on the video of Muslim men being beaten, forced to sing National Anthem, Madras HC: Encroachment cases are on rise spending most of the Court’s valuable time on it, CIC Rejects RTI Application: There is no public interest overriding the Right to Privacy, Supreme Court reiterates: Lease/Tenancy matters not governed under special statutes but TP Act, 1882, are open to arbitration, A constitutional outlook on the right to internet, Maneka Gandhi vs Union Of India – Case Summary. Rakesh Kumar [vi], Hon’ble Supreme Court held that in cases for decree of restitution of conjugal rights, the petitioner wife becomes entitled to receive maintenance from her husband if the two are living with each other and the wife is unable to live a decent life on her own. The remedy is available to both the parties. The judgment was  given in favor of Section 9 as it came with safeguards which prevents it from being tyranny; while also endorsing the fact that this section does not violate Articles 14 or 21 of the Constitution, if the said provision is to be understood from the right perspective. Constitutionality of remedy of restitution of conjugal rights provided under Sec 9 of the Act. In answer to he suit the wife filed a written statement alleging that her husband has been treating her cruelty by beating her very often and preventing her from having access to her relations in Madras and elsewhere. These rights and duties which are binding upon both the spouses under Hindu law are termed as Conjugal or Marital rights. For Hindus a decree can, be passed under Section 9 of the Hindu Marriage Act, Similarly for Parsis provision for it are given under Parsi Marriage Act, for Christians provisions for restitution is given under the religion neutral Indian Divorce Act. The court had dismissed all the allegations charged by the wife and passed the judgment in favor of husband. [3] in which husband had filed the case under Section 9 but the case was dismissed as the wife had proven that he was impotent, which provided a reasonable excuse to withdraw the spouse from her society. Online National Quiz Competition on Criminal Law by LegalReadings, Online National Quiz Competition on Criminal Law by LegalReadings, Online National Quiz Competition on Constitutional Law, Meet The Editorial Board & Content Writers, GROUNDS FOR REFUSAL OF GRANT OF RESTITUTION OF CONJUGAL RIGHTS, The Pre-Requisites of NIKAH ( Muslim Marriage), Revision of Women’s Legal Age for Marriage. It is aimed at preserving the marriage and not at disrupting it thus promoting reconciliation and maintenance of the marital bond. 1. Under Hindu Law, marriage is considered as the most sacred ceremony. The Rights Of Refugees under International Law, Consideration Under Indian Contract Act 1872, Copyright Protection of fictional character : An Analysis, Result! A petition for restitution of conjugal rights is filed under Section 9 of the Hindu Marriage Act, 1955. petition for restitution of conjugal rights under Section 9 of The Hindu Marriage Act considered as the last hope to save the marriage before its breakdown by divorce. That the respondent has withdrawn from the petitioner’s society.eval(ez_write_tag([[300,250],'lawtimesjournal_in-box-4','ezslot_11',114,'0','0'])); 2. That the respondent has withdrawn from the petitioner’s society. This provision is endorsed in the case of. However, there come instances when the section instead of providing remedy has led to infringement of some fundamental rights. Call us at- 8006553304, © 2014-2020 Law Times Journal | All Rights Reserved. That the respondent can claim a matrimonial relief as against the suit.eval(ez_write_tag([[970,90],'lawtimesjournal_in-banner-1','ezslot_3',115,'0','0'])); 2. The leading idea of section 9, to my mind, is to preserve the marriage.”, approved the Delhi High Court’s decision in. That the respondent can claim a matrimonial relief as against the suit. If the either of the spouses denies enjoying the conjugal rights or withdraws from the society without any reason, then the other party can file a suit for restitution of conjugal Rights. The wife is currently residing. The above mention has been observed in various cases, including, [1] wherein the husband left his wife to her parents home and asked to come back when called for, over which the wife had filed a case under Section 9 and the court had granted the decree after observing that there existed no reasonable cause for withdrawal from his society. The judgment against Section 9 was passed by J. Chowdhary quoting -“it promotes no legitimate public purpose based on any conception of the general good.” and after citing several cases, Section 9 was declared null and void as it is in violation of Articles 14 and 21. Law provides that when either husband or the wife withdraws from the society of the other, the aggrieved party may apply to the Court for a direction that the other party should live with him or her. Thus, under these circumstances, the suit for restitution is vitiated and the court becomes bound to a decree for a Judicial Separation followed by a Divorce.eval(ez_write_tag([[250,250],'lawtimesjournal_in-large-leaderboard-2','ezslot_6',116,'0','0']));eval(ez_write_tag([[250,250],'lawtimesjournal_in-large-leaderboard-2','ezslot_7',116,'0','1'])); When the court has to decide whether the withdrawal was made on a reasonable excuse, the burden of proving the reasonability of the excuse is upon the person who has withdrawn from the society or the respondent. The husband and wife used to reside together. Determination of husband entitlement to divorce when petition of restitution of conjugal rights was filed by wife. The judgment went against the wife and the decree was allowed in favor of the husband. Patent Law In Times Of Pandemic: Ensuring Affordable Access of Drugs To All, COVID-19: A NEW RAY OF HOPE TO ALL THE CONTRACT OBLIGATIONS, Honour Killing In India: A Legal Perspective, The Environmental Impact Assessment Draft – A Future Predicament, A Digital Strike in India to Secure Sovereignty. It has been held that “Hindu law itself, even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanction or procedure, as compulsion by the Courts to force her to retu… What is meant by Restitution of Conjugal Rights and by what law is it governed by? After Independence, the Hindu Marriage Act,1955 was introduced in which such treatment or relief is specified under section 9 of the act, and from here … The essential conditions for filing a suit for restitution of conjugal rights are as follows –. In Kharak Singh v. State of Uttar Pradesh [11], it was duly noted that Article 21 implies the right of an individual to be free from restrictions or  encroachments on his person, whether those restrictions or  encroachments are directly imposed or indirectly brought about by calculated  measures.” But these had been ignored in the judgments given by the High court and the Supreme court. At this point, it comes to the conclusion that restitution of conjugal rights is still required in the Indian legal environment because it acts as a last chance to restore the marriage. 1. A party can file a suit for restitution to the District Court in whose jurisdiction – the marriage was solemnized, the couple stayed or the couple last stayed.

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