Zeel Gondaliya, Symbiosis Law School,Pune

Sakshi Sachan, KLE Society’s Law College, Banglore


Naman Joshi, Faculty of Law, University of Delhi


A Hindu marriage is generally regarded as a sacramental bond between husband and wife wherein they vow to stay together and share their lives with each other. Conjugal Rights are the rights which are endowed upon the spouses. It defines the right to stay together. Since the couple have vowed to stay in the company of one another and entered into the marital relationship, they owe a duty to live together. If either of the spouse without any reasonable cause withdraws from the society of the other, the aggrieved party has a right to approach court and demand for restitution of his/her conjugal rights. If the restitution of conjugal rights is granted, the withdrawn party has to return back to staying together with the other party. Restitution of conjugal rights under Hindu law is embedded in Section 9 of the Hindu Marriage Act, 1955.[1] Section 9 of HMA, 1955 is not violative of fundamental rights under Article 14 and 21 of the Constitution.[2] This article shall aim at analyzing the conjugal rights under Hindu law and interpreting the relevant statutes from a legal perspective.

Why The Parties Seek The Decree Of Restitution Of Conjugal Rights

The reason why the remedy of Restitution of Conjugal rights exists is that the right of husband or the wife to the society of the other spouse is not merely the right created in the statute but it inherently exists in the very institution of marriage.[3]

The remedy is also essential as it acts as a catalyst in prevention of breaking-up of marriages as it provides a period of one year for the parties to mediate the issues and reconcile among themselves in order to save their marriage. The backing as to why saving a marriage under Hindu law is important because under the Hindu Law, marriage is a sacrament and believes in its sanctity and revival.

Burden Of Proof

Burden of proof essentially means the obligation of proving something. As a general rule, the burden of proof rests upon the party that asserts a fact or makes a claim, unless otherwise established by the law.

However, in the context of Restitution of Conjugal rights under Hindu Law, the burden of proof in the proceedings lies on that party to prove those statements of assertion made by them to have a decree in their favor and that is exactly what S.9 of the Hindu Marriage Act.

Section 9 of the Hindu Marriage act provides that when either of the spouse has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party can seek remedy applying to the Court for restitution of conjugal rights. When the petitioner, husband or wife as the case may be, adduces proof that the withdrawing party did not have a reasonable excuse to withdraw from the society of the other, then the burden lies on the other side of proving reasonable excuse, if any, for withdrawal of the society.[4]

Now, the question arises whether there has been a reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. Hence, the petitioner seeking restitution of conjugal rights, in order to get a decree, has to prove two things: (i) that the respondent has withdrawn from the society of the petitioner and (ii) that such withdrawal has been without any reasonable excuse.[5]

Conditions When Restitution Is Decreed And When Refused

Section 9 must be read along with Section 23 of the Hindu Marriage Act. Section 23 imposes a duty on the courts to inquire and pass a decree including the decree for restitution of conjugal rights. Before passing any such decree, the court needs to make sure that the claimant i.e. the petitioner has a bonafide desire to resume the matrimonial cohabitation and has good intentions about continuing the marital relation by rendering all his rights and duties.[6] Court must be entirely satisfied beyond reasonable doubt that the respondent had, without reasonable excuse, withdrawn from the company of the petitioner; and therefore there are no legal grounds as to why such decree should not be granted by the court. A petitioner cannot approach court to claim a decree of restitution of conjugal right after a preceding failure of a divorce petition on grounds of desertion. This does not portray bonafide intentions.[7]

Situations under which decree of restitution of conjugal rights will not be awarded:-

1. In a situation where the respondent had a reasonable excuse or a just cause for withdrawing from the company of the petitioner, the Court is not entitled to pass a decree for restitution.

2. In a case where the respondent has asked for a decree for judicial separation, annulment of the marriage or divorce.

3. Section 23(1)(a) - petitioner taking advantage of his/her own wrong or misconduct for obtaining such relief.

4. Section 23(1)(c) and Section (1)(d) - collusion with the respondent and causing unnecessary delay in instituting the suit.

5. On any grounds available to the wife for claiming maintenance under Section 18 of Hindu Adoptions & Maintenance Act, 1956.[8]

6. Court may also refuse to grant a decree of restitution of conjugal rights on the ground of marriage being in violation[9] of the Child Marriage Restraint Act, 1929.[10] It is imperative to prove that there was a complete absence of just cause for withdrawal.

‘Reasonable Excuse’Or ‘Just Cause’

Section 9 clearly describes that the withdrawal should be without ‘reasonable cause’. Apart from the basic excuses of cruelty, there can be other reasons which the court can consider as reasonable. The question arises that what acts justify to be a reasonable excuse or a just cause. One of the acceptable views is that the ‘just cause’ should be grave and convincing enough for the Court to justify the withdrawal of the respondent from petitioner’s society. While assessing the issue of reasonable excuse, the Court should consider the defence taken by the respondent, who is alleged to have left the matrimonial togetherness; along with the facts and circumstances. In cases with defence of mental or physical agony as a reason for withdrawal, it is imperative to weigh the circumstances in entirety to arrive at the conclusion. The concept of ‘reasonable excuse’ assumes significance because the conduct of the petitioner may be such that it might justify the withdrawal from the society by the respondent. Court has full discretion for refusal of passing a decree of restitution if the evidence indicates ill treatment.

Execution of Decree of Conjugal Rights

The first very important ingredient to apply for restitution of conjugal rights is the existence of a valid marriage.[11] The decree of restitution of conjugal rights can be enforced by attachment of property and if the party complained against still does not comply, the court may punish him or her for contempt of court. It is pertinent to note that the decree of restitution of conjugal rights can be enforced, but under no circumstances the court can force the opposite party to consummate marriage.


Under Hindu Culture, marriage is a sacrement and its sanctity and survival is very important in the Hindu culture. The laws related to conjugal rights under Hindu Marriage Act somehow helps in maintaining the sanctity of this sacrement by giving one more oppurtunity to the couples to sustain their marriage.

[1]The Hindu Marriage Act, 1955, § 9, No. 25, Acts of the Parliament, 1955 (India). [2]Saroj Rani v. Sudarshan Kumar AIR 1984 SC 1562 (India). [3]Harvinder Kaur AIR 1984 Del 66 (India). [4]Smt. JyothiPai vs. P.N. Pratap Kumar Pai, AIR 1987 Kar 241 (India). [5]Sadhu Singh Balwant Singh vs. Smt. Jagdish Kaur Sadhu Singh AIR 1969 P&H 139 (India). [6]Sayal v. Sayal AIR 1968 P&H 489 (India). [7]Karabi Das (Smt.) v. Paritosh Das, AIR 2003 Cal 61 (India). [8]Hindu Adoptions and Maintenance Act, 1956, § 18, No. 78, Acts of the Parliament, 1956 (India). [9]Sukram v. MishriBai AIR 1979 MP 144 (India). [10]The Child Marriage Restraint Act, 1929, No. 19, Acts of the Parliament, 1929 (India). [11]SarveshSaxena v. Smt. SanjuSaxena2009 SCC OnLineUtt 612 (India).

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