Restitution of Conjugal Rights is a legal remedy available to a spouse when the other spouse has withdrawn from their company without any reasonable excuse. The concept is primarily governed by Section 9 of the Hindu Marriage Act, 1955, and similar provisions exist under other personal laws in India. The aggrieved spouse can approach the Family Court seeking a decree to compel the errant spouse to resume cohabitation and fulfil marital obligations.
To file for restitution of conjugal rights, a husband or wife must file a petition under Section 9 of the Hindu Marriage Act, 1955, before the Family Court having jurisdiction, along with proper pleadings and evidence showing that the other spouse has withdrawn from their company without just cause.
What is Restitution of Conjugal Rights?
Section 9 of the Hindu Marriage Act, 1955 states:
“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights.”
If the court is satisfied that the statements made in the petition are true and there is no legal ground why the relief should not be granted, it may decree restitution of conjugal rights.
Conditions for Filing a Petition
To succeed in a petition under Section 9, the petitioner must prove:
- The respondent (spouse) has withdrawn from the company of the petitioner.
- The withdrawal was without any reasonable cause or excuse.
- The petitioner is ready and willing to cohabit with the other spouse.
- The marriage is valid and subsisting.
Step-by-Step Procedure to File for Restitution of Conjugal Rights
1. Consult a Family Lawyer
Before filing, consult an experienced family lawyer to assess your case and draft the petition correctly.
2. Draft the Petition
The petition should include:
- Details of marriage (date, place, registration).
- Circumstances under which the respondent left.
- Statement affirming that there is no reasonable excuse for withdrawal.
- That the petitioner is willing to resume matrimonial life.
- Prayer for a decree of restitution of conjugal rights.
Attach relevant documents:
- Marriage certificate
- Proof of residence
- Any correspondence showing willingness to cohabit
- Evidence that the respondent left or refused to cohabit
3. File the Petition in the Family Court
Submit the petition to the Family Court or District Court having territorial jurisdiction:
- Where the marriage was solemnized,
- Where the couple last resided together,
- Where the respondent is currently residing.
4. Court Issues Notice to the Respondent
The court will issue a summons/notice to the other spouse to appear and file a written statement.
5. Filing of Written Statement by the Respondent
The respondent may accept or contest the petition. If contested, he/she may allege:
- Reasonable cause for withdrawal (e.g., cruelty, abuse, adultery),
- Breakdown of marriage,
- Other legal grounds.
6. Evidence and Trial
Both parties will present evidence:
- Oral and documentary evidence
- Witness statements (if any)
- Cross-examination
7. Judgment
If the court finds that:
- The respondent withdrew without reasonable cause, and
- The petitioner is genuinely interested in resuming marital life,
it will pass a decree for restitution of conjugal rights.
Effects of a Decree for Restitution of Conjugal Rights
- It is a civil direction to the errant spouse to resume cohabitation.
- No forced physical return is ordered—compliance is expected voluntarily.
- If the respondent does not comply with the decree within a year, it can become a ground for divorce under Section 13(1A)(ii) of the Hindu Marriage Act.
When Can Restitution of Conjugal Rights Be Refused?
The court may deny relief if:
- The respondent shows reasonable cause for living separately (e.g., cruelty, desertion, threats, infidelity).
- The petitioner has unclean hands or concealed material facts.
- The marriage itself is invalid.
Constitutional Challenge to Section 9
The provision of restitution of conjugal rights has faced criticism as being violative of the right to privacy and bodily autonomy, especially post the Puttaswamy judgment (Right to Privacy case, 2017). However, the provision remains valid and enforceable as of now, unless struck down or modified by the Supreme Court.
Important Case Laws
1. Sarabjit Singh v. Harvinder Kaur AIR 1984 Delhi 66
The court held that refusal to cohabit without any reasonable excuse entitles the aggrieved spouse to seek restitution.
2. T. Sareetha vs. T. Venkata Subbaiah AIR 1983 AP 356
Andhra Pradesh High Court had declared Section 9 unconstitutional, but the judgment was later overruled.
3. Smt. Harvinder Kaur vs. Harmander Singh AIR 1984 Delhi 66
The Delhi High Court upheld the constitutionality of Section 9, stating it promotes reconciliation and not coercion.
Conclusion
Filing for restitution of conjugal rights is a legal way to reassert your right to cohabitation when your spouse has withdrawn from the relationship without any justified reason. The procedure involves filing a petition before the Family Court under Section 9 of the Hindu Marriage Act, providing evidence of separation, and seeking a court order directing the spouse to resume matrimonial life. However, it should be filed with a genuine intention to reconcile and not merely as a litigation tactic.
Frequently Asked Questions (FAQs)
Q1. Is the decree for restitution of conjugal rights enforceable?
While the court can pass a decree, physical force cannot be used to enforce cohabitation. It is expected to be honored in good faith.
Q2. Can a husband file for restitution of conjugal rights?
Yes, both husband and wife have equal rights under Section 9 of the Hindu Marriage Act.
Q3. Can I file for divorce if my spouse does not obey the restitution decree?
Yes. If your spouse does not comply with the decree within one year, it becomes a valid ground for divorce under Section 13(1A)(ii).
Q4. What is the court fee for filing a restitution petition?
It varies by state but is usually nominal (between ₹50–₹500) in Family Courts. Lawyer’s fees are separate.
Q5. Is it mandatory to file restitution before divorce?
No. You can file for divorce directly. Filing restitution is optional and usually done to preserve the marriage or create a legal record of the spouse’s withdrawal.
Filing for restitution of conjugal rights is a delicate legal step and should be taken only after considering all circumstances and with the guidance of a qualified family law expert.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304