Part II The Hindu Marriage Act, 1955

[s 9]Restitution of conjugal rights.—

When either the husband or the wife has, without reasonable excuse, withdrawn from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.

Explanation—Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the
person who has withdrawn from the society.

NOTES

[s 9.1] Amendment.—

This section was amended by the Marriage Laws (Amendment) Act, 1976 (68 of 1976).
The Explanation was added and sub-section (2) was omitted (w.e.f. 27-5-1976). Sub-
section (2) stated: "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". See notes under "Omitted sub-section (2)".

[s 9.2] Restitution of conjugal rights.—

Even apart from legislation relating to matrimonial law, decrees for restitution of
conjugal rights have been passed by courts in India in case of all communities, though
at one time it was questioned whether they had jurisdiction to entertain cases of this
description.129 The concept of the existence of the court's power to give this relief was
borrowed from English law. Matrimonial causes in England were formerly heard and
determined by ecclesiastical courts and the earlier English statutes which gave
jurisdiction to the King's Courts directed the courts to determine causes as far as
possible on the principles of ecclesiastical law. The legislature did not alter the canon
law except in a few matters and the judges who administered the law were bound by
precedents established in the ecclesiastical courts. An examination of the decisions of
courts in India in matters of restitution of conjugal rights shows that in some respects
the general principles underlying the English law were described as barbarous by Lord
Herschell,130 but there have since been considerable changes effected in that law and
the provisions of the recent legislation have the effect of abolishing the remedy.131

The Supreme Court has held that this section is not violative of Articles 14 and 21 of
the Constitution.132

Relief under the section would be restricted to spouses of a valid marriage. The section
pre-supposes a valid marriage for the relief of restitution. Where it is found that the
marriage was neither solemnised nor registered, relief was declined.133 Where the
existence of the marriage is in issue, resort to the remedy under this section is outside
the purview of the provision. The proper remedy in such cases would be a suit for
declaratory relief as to the existence of the marriage.134

A husband who had developed illicit relations with another woman cannot maintain a
petition for restitution of conjugal rights against the "wife" of such second marriage.135

[s 9.3] Basis of the rule and importance of a decree for restitution.—

The foundation of the right to bring a suit for restitution of conjugal rights is the
fundamental rule of matrimonial law that one spouse is entitled to the society and
comfort—consortium—of the other spouse and where either spouse has abandoned or
withdrawn from the society of the other without reasonable excuse or just cause, the
court should grant a decree for restitution. Restitution presupposes a valid marriage.
When there is no acceptable evidence of marriage, no restitution can obviously be
ordered.136

The importance of the relief by way of a decree for restitution of conjugal rights
recognised in this section lies in this that it 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, 1956.137

The more practical importance, however, of this relief by way of a decree for restitution
of conjugal rights is that it affords a ground for divorce to either party under section
13(1A) which lays down that either party to a marriage, whether solemnised before or
after the commencement of the Act, may obtain a decree of divorce on the ground that
there has been no restitution of conjugal rights between them for a period of one year
or upwards after the passing of a decree for restitution of conjugal rights in a
proceeding to which they were parties.

There is difference of judicial opinion on the question whether, in a petition for

restitution of conjugal rights an alternative prayer for divorce could be sought. The High
Courts of Allahabad and Madhya Pradesh have held that such proceedings could
enure.138 The High Court of Himachal Pradesh has taken a contrary view.139 Desertion
is the forsaking of all marital obligations by the deserting spouse, without any
reasonable cause and without the consent of the deserted spouse. The deserted
spouse has a right in law to seek restitution of the marital tie, and all its obligations on
part of the respondent. Decisions based on abandonment have held that such conduct
by the deserting spouse may entitle the deserted spouse to seek a divorce.140 In the
humble opinion of the author, no plaintiff can be estopped from claiming or seeking
alternative reliefs. The seeking of one relief, as opposed to another, would not render
the proceedings not maintainable. Reference is invited to the provisions of Order VII
rule 7 of the Code of Civil Procedure, 1908, which stipulates that every plaint shall state
specifically the relief, which the plaintiff claims, either simply or in the alternative. There
is thus, no legal bar against a plaintiff seeking two apparently diagonally opposite
reliefs. As held by the Supreme Court141 "a plaintiff may rely upon different rights
alternatively and there is nothing in the Code of Civil Procedure, 1908 to prevent a party
from making two or more inconsistent sets of allegations and claiming relief
thereunder in the alternative". It therefore stands to reason, that two different reliefs
which may conflict with each other, could be claimed. The court however, would grant
only one of the reliefs, based on the pleadings of the parties. Based upon the above
pronouncement, it appears that there could be no embargo on alternative prayers of
restitution of conjugal rights or divorce. Such prayers would not be barred.

In a petition for restitution of conjugal rights, under this section, a petitioner can pray
for alternative relief by way of divorce.142

The Calcutta High Court has held that when a petition for restitution of conjugal rights
was presented, the court could not permit conversion of such petition to claim a
divorce, without affording an opportunity of hearing to the other spouse.143

Where a petition for divorce is filed by one spouse and the other spouse files a petition
for restitution, the evidence recorded in the petition for divorce cannot be read for
purpose of the petition for restitution. On the facts, the court stayed the rendering of
decision under the petition for divorce.144 On dismissal of proceedings for divorce
initiated by one spouse, proceedings for restitution initiated by the other spouse ought
to be allowed as the spouses were required to live together as man and wife.145

[s 9.4] Petition to the district court.—

The petition for restitution of conjugal rights must be made to the "district court" as
defined in section 3(b). Reference may be made to notes under section 19, post. Where
a suit is filed instead of a petition, the decision is not a nullity, the difference being one
merely of nomenclature.146

[s 9.5] Restitution when decreed and when refused.—

This section must be read with section 23 of the Act which imposes on the court the
duty to inquire into and pass a decree, inter alia, for restitution of conjugal rights, after
satisfying itself about certain matters, the petitioner must show that there is a bona fide
desire to resume matrimonial cohabitation and to render the rights and duties of
matrimonial life. The petitioner who is sincere in that sense can seek the relief but not
otherwise.147 The decree may be passed on a petition by either spouse who may be
the aggrieved party. Thus, a wife, compelled to leave the matrimonial home because of
ill treatment is entitled to a decree of restitution when the husband did not make any
efforts to take her back.148 Before passing a decree for restitution, the court must be
satisfied beyond reasonable doubt that the respondent has, without reasonable excuse,
withdrawn from the society of the petitioner; and there is no legal ground why the
decree should not be passed. Failure of an earlier petition for grant of divorce on the
grounds of desertion will disentitle a subsequent petition for restitution of conjugal
rights.149

The legal grounds for refusing to grant relief may consist of:

(i) for instance, any ground on which the respondent could have asked for a decree
for judicial separation or for nullity of marriage or for divorce;

(ii) reasonable excuse (or what is spoken of in this context as just cause) for
withdrawing from the society of the petitioners;

(iii) any conduct on the part of the petitioner or fact tantamount to the petitioner
taking advantage of his or her own wrong or any disability for the purpose of
such relief [section 23(1)(a)];
 (iv) collusion with the respondent [section 23(1)(c)];

(v) unnecessary or improper delay in instituting the proceeding [section 23(1)(d)];

(vi) grounds which are available to a wife to claim maintenance under section 18 of
the Hindu Adoptions and Maintenance Act, 1956.150

A view has been expressed that once a decree of restitution has been passed in favour
of a husband, it requires the wife to join him. If the wife has prayed for interim
maintenance in the meanwhile, she should not be entitled to get maintenance at least
after the date of the order of restitution, as this would penalise the husband who would
be required to pay her interim maintenance, despite the decree, if such spouse does not
subject herself to the decree. Of course, if such a decree is passed in favour of the wife,
the court would be justified in passing an order directing the husband to pay interim
maintenance till he resumes cohabitation.151

Reference may also be made to notes under section 23(2) "Reconciliation".

(i) A wife can resist a petition for restitution of conjugal rights on the ground that
the husband had married another wife before the Act came into operation and by
bringing her case within the ambit of section 13(2)(i) post.152

(ii) Restitution of conjugal rights cannot be refused to a husband on the ground of a

custom forfeiting the right of outcasted husband to the society of wife.153

(iii) The court may refuse to grant a decree of restitution of conjugal rights to
petitioner on the ground that the marriage of the parties was in violation of the
Child Marriage Restraint Act, 1929. The position, however, can be different if
after attaining full age, the wife had lived with the husband and had withdrawn
from his society without reasonable cause.154

A husband has the right to require his wife to live with him wherever he may choose to
reside and special circumstances apart, the court will not absolve the wife from
discharging her corresponding duty and the court is satisfied that the attitude of the
wife does not furnish any reasonable excuse or just cause for living apart.155 Even an
agreement between the parties, prior to the marriage, that the spouses will live in the
house of the wife's father, will not affect the husband's right. Such an agreement per se
would be no answer to a husband's petition for restitution of conjugal rights.156

The position, of course, would be different if circumstances compel the spouses to live
in different places and furnish a reasonable excuse or just cause to the wife to live in a
different place. The court will not be guided in such cases by any rigid or old concepts
of marital duties and will prefer to take into account, present-day conditions.157

As to the choice of matrimonial home, reference may be made to the observations in

the undermentioned case.158 A petition for restitution casts a duty upon the court to
make efforts to see that the marital tie is, as far as possible, not severed, without
reasonable cause. In a peculiar state of facts, the Supreme Court held that the spouses
were minor when they married and later on a child was also born. In proceedings for
restitution, which reached the High Court, the High Court directed initiation of
proceedings under section 376 of the Penal Code. The Supreme Court held that the
High Court should not have done so.159

[s 9.6] Burden of proof.—

The initial onus of proving that the respondent, has without reasonable excuse,
withdrawn from the society of the petitioner, must obviously rest on the petitioner. The
mere circumstance that the wife's allegation of cruelty in defence in any such case is
not proved, would not displace that onus.160

However, the onus of proving reasonable excuse must rest on the respondent.161 The
initial burden being on the petitioner, the petitioner must, as a rule, lead evidence to
establish the averments on which relief is sought.162

[s 9.7] "Reasonable excuse" or "just cause".—

The question whether conduct falling short of cruelty or any other matrimonial offence
can justify one spouse in leaving another has been much debated in England and
judicial opinion on the question is not wholly uniform.163 However, the more recent and
acceptable view seems to be that the "just cause" must be "grave and weighty" or as it
is sometimes said, "grave and convincing" and that it may be distinct from a
matrimonial offence. It may be distinct from cruelty to the extent that it falls short of or
is less than legal cruelty but nonetheless, the reasons for withdrawal from the society
of the petitioner must be grave and weighty. In Timmins v Timmins,164 it was held by
the Court of Appeal that the husband was not guilty of cruelty but his conduct was a
grave and weighty matter which gave the wife good cause for leaving him and
prevented him from obtaining a decree for restitution of conjugal rights, unless and
until he satisfied the court that, if she returned to him, he would behave with conjugal
kindness, and, therefore, was a defence to the husband's petition for restitution.

The court should, while assessing as to whether there was reasonable excuse or just
cause on the part of the spouse alleged to have left the matrimonial home, take note of
the pleadings, since the defence of the spouse who is alleged to have left the
matrimonial home as regards the reason for doing so would assume significance in the
attendant facts and circumstances. When a defence of mental pain or physical acts on
the part of the other spouse are taken up in order to justify the reason for leaving the
matrimonial home, the court should weigh the circumstances in order to arrive at a
conclusion. The court cannot ignore the defences in an action for restitution and insist
on the respondent proving the defences set up in order to defeat the action. The
concept of "reasonable excuse" or "just cause" assumes significance since, as
mentioned earlier, the conduct of the spouse seeking restitution may fall short of
cruelty in the legal sense, but may be such that it may justify withdrawal from society
by the respondent.165 The court's refusal to pass a decree of restitution of conjugal
rights is within its discretion if there is evidence of ill treatment, upto the time that such
apprehension abates.166 Where a wife's criminal complaint was found to be false, after
the trial, and the wife preferred a petition for restitution of conjugal rights, the court was
justified in holding that the husband had withdrawn from the society of the wife due to
her conduct, thus restitution could not be decreed.167 In the facts of the same
judgment, it appears incongruous, that after filing of a criminal complaint, where the
husband was acquitted, the wife filed diametrically opposite proceedings for
restitution. In such circumstances, the husband cannot be compelled towards
resuming the marital tie.

Even execution of a decree of restitution can be refused if reasonable grounds exist.168

Since it is apparent that this section envisages just cause for the respondent to leave
the matrimonial home for reasons that may be "grave and convincing", it may be stated
that the degree of proof which is required to justify the respondent's action in leaving
the matrimonial home can be stated to be on a much lower plinth than conduct which
falls within the ambit of section 13, justifying action under that section.

[s 9.8] Omitted sub-section (2).—

The language of sub-section (2) which is now omitted by the Amending Act of 1976,
gave the impression that the reasonable excuse envisaged in sub-section (1) must be
such conduct on the part of the petitioner-spouse as would actually amount to a
matrimonial offence.

It would seem that conduct of a spouse which for one reason or another falls short of
cruelty or any other matrimonial offence, would afford reasonable excuse for leaving or
withdrawing from the society of the spouse and be a defence to a suit for restitution
under the present section. Whether one party has reasonable excuse for leaving the
other or staying apart, must depend on whether the conduct complained of is of a
grave and weighty character. The plea that there was reasonable excuse for the
respondent to withdraw from the society of the petitioner, must in substance involve an
inquiry into facts. Each case must depend on its own facts and circumstances and it is
not possible to give an exhaustive statement of what may or may not constitute
"reasonable excuse". In the decisions mentioned below,169 the above principles were
accepted and relief under the present section was not granted to the petitioner on the
ground that the other spouse had withdrawn from the society of the petitioner for a
reasonable excuse. A contrary view has been expressed by the High Courts of Andhra
Pradesh and Mysore170 which have held that the "reasonable excuse contemplated by
sub-section (i) must be one which would afford a ground either for judicial separation
or for nullity of marriage, or for divorce".

Sub-section (2) was omitted to remove the uncertainty. Reference may also be made to
the undermentioned decisions as to what amounts to withdrawal from society within
the ambit of the Explanation.

[s 9.9] Correspondence.—

Correspondence between the spouses is quite often relied upon in support of or in

opposing the plea for restitution of conjugal rights. These letters have to be read
bearing in mind the circumstances, the anxiety and mental condition of the spouses at
the time and also the situation and the thoughts of the parties which occasioned the
statements, complaints and at times, even allegations therein contained.171 Such
correspondence between spouses may assume significance in view of assertions that
may have been made, and the court can order that such correspondence be produced
before it, in order to examine the veracity of the allegations contained in such
correspondence.172

[s 9.10] Delay.—

Unnecessary and improper delay in instituting proceedings for restitution of conjugal

rights can be a ground for refusing relief under this section.173 Reference may be made
to section 23(1)(d) post.
[s 9.11] Separation by mutual consent.—

Prior to the passing of the Matrimonial Causes Act, 1884, it was regarded as settled
law in England that deeds of separation were utterly inoperative to abrogate the duty of
cohabitation involved in the tie of marriage and that, notwithstanding any such
agreement, it was competent to either party to sue for a decree of restitution of
conjugal rights.174 Though an agreement between husband and wife to live apart is not
by itself a bar to a petition for restitution of conjugal rights in England, the effect of the
above Act which enacted that a respondent who failed to comply with a decree for
restitution should be deemed guilty of desertion without reasonable cause, and that a
suit for judicial separation might be instituted on that ground, was that the court was
empowered to refuse a decree for restitution where such an agreement was shown to
exist and neither party had taken steps to set it aside. It has also been held there that a
valid agreement between the spouses to live apart may exist in the absence of a formal
deed of separation and without an express covenant not to sue for restitution of
conjugal rights.175 The principle underlying the cases on the subject is that an
agreement providing for present separation is valid while on the other hand, an
agreement for future separation is bad and opposed to public policy.

The defence that there was a pre-nuptial contract between the parties to live separate
in certain circumstances was raised in some cases in India where restitution was
sought and such contracts were held to be void and illegal as interfering with marital
duties and opposed to public policy. Those decisions also turned on the principle that
such agreements were contrary to the personal law of the parties. However, the
fundamental difference between a case where an agreement for living separate
entered into during the continuance of marriage and an agreement before or at the
time of marriage controlling the rights of the parties is that the first was not
disregarded and only agreements of the latter character were treated as nugatory and
infructuous.176

There seems no reason why a valid agreement for immediate and not future
separation, bona fide entered into, during the continuance of marriage with a view to
enable the parties to live in peace should not be treated as empowering the court to
refuse a decree for restitution. It is submitted that a different rule would have the effect
of enabling a party to get a decree of divorce on the ground of non-compliance with the
degree for restitution on facts contrary to the truth of the case. Moreover, a spouse
who is living separate, after a bona fide agreement of this nature, cannot properly be
said to have withdrawn from the society of the other spouse without reasonable
excuse.177

[s 9.12] Consent Decree.—

Reference may be made to notes under section 23 post.

[s 9.13] Mode of execution of decree.—

The Code of Civil Procedure, 1908, Order 21, rules 32, and 33 deals with the question of
execution of a decree for restitution of conjugal rights. There can be no sanction or
procedure as compulsion by the court to force a party to a marriage to return to the
other spouse against his or her will and the more modern procedure is as now laid
down in the provisions mentioned above. Section 24 of this Act lays down rules relating
to maintenance pendente lite and expenses of proceedings and section 25 lays down
rules relating to orders for maintenance which can be made at the time of passing of
the decree or at any time subsequent to such decree. Reference may also be made to
section 28 and notes thereunder. The powers of the executing court are limited to
attachment of property of the defaulter if the decree of restitution is not obeyed.178
When there is wilful disobedience by the spouse of a decree of restitution and when the
executing court orders periodical payments as per Order 21 rule 33 of the Code of Civil
Procedure, 1908, such payment is not in the nature of a penalty and cannot exceed the
amount of maintenance.179

A spouse in whose favour a decree of restitution has been passed cannot deny
maintenance to the other spouse, when no steps for executing and enforcing the
decree have been taken by the person in whose favour the decree has been passed.180

Pending proceedings are governed by the section.—It is submitted that suits for
restitution of conjugal rights between Hindus whose marriage was solemnised in
accordance with Hindu law, pending at the date of the commencement of this Act, will
be within the ambit of this section. A different view has been expressed by the High
Court of Punjab,181 but the only question for the determination of the court in that case
related to jurisdiction and not to the applicability of the provisions contained in the
present section. A suit for restitution of conjugal rights was pending in the court of the
subordinate judge when the Act came into operation and it was contended that the
district court alone had jurisdiction to proceed with the suit by operation of section 19
of the Act which deals with jurisdiction. The High Court negatived the contention.
Section 19 applies only to petitions presented after the Act came into operation and
there is no other provision in the Act which affects the jurisdiction of courts which were
competent to try pending suits for restitution of conjugal rights.182

129 Dadaji Bhikaji v Rukmabai, (1886) 10 Bom 310; Moonshe Buzloor Ruheem v Shumsoonissa
Begum, (1867) 11 Moo Ind App 551; Tekait Mon Mohini v Basanta Kumar, (1901) 28 Cal 751; Bai
Jivi v Narsingh Lalbhai, (1926) 51 Bom 329. Also see § 441, Pt I.
130 Russell v Russell, (1897) AC 395, p 455.
131 Matrimonial Proceedings and Property Act, 1970, section 20. The position is the same after
Matrimonial Causes Act, 1973.
132 Saroj Rani v Sudarshan Kumar, AIR 1984 SC 1562; overruling Sareeta v Venkatasubiah, AIR
1983 AP 356; Harvinder Kaur v Harmandar Singh, AIR 1984 Del 66; Santosh Kumar Pandey v
Ananya Pande, AIR 2013 Chh 95.
133 Sanjeev Kumar v Priti Kumari, AIR 2011 Jha 1.
134 Santosh Kumar Pandey v Ananya Pande, AIR 2013 Chh 95.
135 Sarvesh Saxena v Smt. Sanju Saxena, AIR 2010 Ut 16.
136 Pallavi Bhardwaj v Pratap Chauhan, 2012 AIR SCW 3805 : (2011) 15 SCC 531.
137 See notes under section 24.
138 Krishna Devi v Addl Civil Judge, AIR 1985 All 131; Bhavana Advani v Manohar Advani, AIR
1992 MP 105.
139 Baldev Raj v Bimla Sharma, AIR 2006 HP 33; Nirmala Devi v Ved Prakash, AIR 1993 HP 1.
140 Geeta Jagdish Mangtani v Jagdish Mangtani, AIR 2005 SC 3508.
141 Firm Srinivas Ram Kumar v Mahabir Prasad, AIR 1951 SC 177.