RESTITUTION OF

CONJUGAL RIGHTS (HINDU,

MUSLIM, PARSIS AND
CHRISTIAN)
 MEANING OF RESTITUTION
OF CONJUGAL RIGHTS
• Conjugal rights mean rights emanating from a marital
bond.
• Cumulatively these rights are called conjugal rights and
form the very essence of a marital union. Restitution of
conjugal rights means the right to stay together.
• It is an accepted norm that each spouse is entitled to
the society and comfort of the other and if any spouse,
without any reasonable cause leaves any spouse, the
latter can move the court for a decree of restitution of
conjugal rights.
• The restitution of conjugal rights is a positive remedy
that is given to a spouse to protect their marriage, to
facilitate cohabitation among couples, and to save the
sanctity of marriage.
 MARRIAGE UNDER HINDU
LAW
• Since the inception of Hindu
Law, marriage has been
considered as a sacrament.
• Probably, no other people have
endeavoured to idealize the
institution of marriage as the
Hindus have done.
• But since the codification of
Hindu Laws in relation to
marriage, under the Hindu
Marriage Act, 1955, it is at
the same time a contract and a
sacrament.
 ORIGIN OF RESTITUTION OF
CONJGAL RIGHTS
• Restitution of Conjugal Rights finds its origin from
Jewish law.
• This remedy was adopted into Indian legislature neither
from the Dharmashtra nor any personal law in the
Indian subcontinent, but through the English Common
Law of the British Raj.
• It was applied in India by the Privy Council for the first
time in 1866 in the case of Moonshee Bazloor v.
Shamsoonaissa Begum and through the means of judicial
interpretations and legislative actions found its way
into the Hindu Marriage Act, 1955 under section 9,
Special Marriage Act, 1954 under section 22, Parsi
Marriage and Divorce Act, 1988 under section 32,
Divorce Act, 1869 under section 32 and Muslim personal
laws.
• The concept of restitution of conjugal rights owes its
origin to the ancient times when the institution of
marriage was based on proprietary rights of the
husband.
• Marriage imposes an obligation on both spouses to
cohabit with each other.
• The Indian judiciary had maintained a tremendously
archaic and platitudinous approach by holding that a
wife’s first duty to her husband is to submit herself
obediently to his authority and to remain under his roof
and protection in the case of Tirath Kaur v. Kartar
Singh, AIR 1964 Punj 28.
• The wife was considered as a property of the husband
and was, therefore, required to reside in the consortium
of the husband at all times. Even a mutual agreement
between the husband and wife to live separately was
considered void as it was viewed to be contrary to public
policy in the case of Tekait v. Basanta, (1901) 28 Cal.
751.
• Through the restitution of conjugal rights, the
husband becomes entitled to the conjugal
society of his wife and can, by a legal process,
compel the latter to reside in his domain, if
she refuses to do so, and vice versa.
• If either party unreasonably withdraws from
the conjugal society of the other and
voluntarily chooses not to share a household
with their spouse, then the aggrieved party
can petition for the restitution of conjugal
rights.
• If the respondent has a valid ground to live
separately from the petitioner, then the latter
cannot succeed in the pursuance of said
petition.
 COURT PASS A DECREE IN
FAVOUR OF THE PETITIONER
IN THREE CONDITIONS
# Surinder v. Gurdeep, 1973 P&H 134
• The respondent has withdrawn from the
society of the petitioner without any
reasonable excuse.
• The withdrawal was not a consequence of the
actions of the petitioner.
• There exists no legal ground why the relief
should not be granted.
 PROVISION UNDER THE
HINDU MARRIAGE ACT, 1955
• The Hindu Marriage Act, 1955 provides for the restitution of
conjugal rights under Section 9, which reads as follows:

• ‘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.’
• The explanation, which had
been added following the
amending act of 1976, makes
it clear that the onus is upon
the party who has withdrawn
from conjugal society to show
that there was a reasonable
excuse for such withdrawal.
Prior to the amendment, the
section was silent on this
point and judicial decisions
held that the burden was on
the petitioner to prove that
the respondent had
withdrawn from their
conjugal society without
reasonable excuse. Reba Rani
v. Ashit, AIR 1965 Cal.
102.
 CONSTITUTIONALITY OF
SECTION 9
• The question of the constitutionality of exercising the remedy
of restitution of conjugal rights had been initially presented
before the Andhra Pradesh High Court in 1983.

• In the case of T. Sareetha v. Venkata Subbaiah AIR 1983 AP

356, it was argued in this court that the right to privacy confers
upon a party to a marriage the ‘right of free choice as to
whether, where, how and by who her body is to be used for
procreation of children’ and by recognizing the remedy of
restitution of conjugal rights under Sec. 9, the State is violating
the fundamental liberty, privacy and dignity guaranteed by
Article 21 of the Indian Constitution. Further, since the remedy
was available to both to married men and women it was
contended that by treating the wife and husband, who are
inherently unequal, as equals, the impugned section offends the
rule of equal protection of laws and, hence, contradictory to the
essence of equality given under Article 14.
• While declaring the judgment, Justice P. A. Choudhary had
accepted the abovementioned arguments and sided with the
respondent.
• He viewed that forceful cohabitation of two spouses unwilling to
reside with each other would lead to forced sexual intercourse
against the wife.
• He had elaborated on the opinions by articulating on this issue
that by enforcing a decree for restitution of conjugal rights the
life pattern of the wife is likely to be altered irretrievably
whereas the husband’s can remain almost as it was before, since
it is the wife who has to bear the child.
• The judge had adopted an archaic approach by further
enunciating that the inevitable consequence of the enforcement
of this remedy cripples the wife’s future plans of life.
• With the perspective of the wife, he had associated the right
under Sec. 9 as a self-destructive remedy, partial and one-sided,
since it was practically available only to the husband.
• As a result, Justice Choudhary had ruled Sec. 9 to be
unconstitutional as its provisions were anti-thesis to the
fundamental rights guaranteed under Articles 14 & 21 of the
Constitution.
• As a critic we can say
that Justice in this
case has considered
the entire question of
restitution of conjugal
rights from the point
of view of the husband.
• It seems that he
completely overlooked
that restitution of
conjugal rights can also
be claimed by the wife.
 JUDICIAL DECISIONS
• Subsequently, within less than a year, the
issue of the constitutionality of Sec. 9 had re-
appeared, this time before the Delhi High
Court in the case of Harvinder Kaur v.
Harmander Singh AIR 1984 Del. 66. Where
the view of the Andhra Pradesh High Court
was dissented from. The state of conflict with
relation to the disputed section’s
constitutionality was resolved by the Hon’ble
Supreme Court in the same year, in the case
of Saroj Rani v. Sudarshan Kumar AIR 1984
SC 1562. where Justice Sabyasachi Mukhatji
had upheld the Harvinder case and overruled
the T. Sareetha case.
 FOR THE FOLLOWING CAUSE
• The purpose of the decree of restitution of
conjugal rights is only to offer an inducement
for the husband or wife to live together and
did not place emphasis on the compulsion of an
unwilling wife to engage in sexual intercourse
with her husband.
• The object of the decree was only to bring
about cohabitation between the estranged
parties so that they can live together in the
matrimonial home in amity.
• Hence, restitution of conjugal rights aimed at
consortium and not merely sexual intercourse.
 In the End…
• The remedy of restitution of conjugal rights attacks at a person’s
basic essence of being by disabling their right to choose who and who
not to reside with.
• Both parties in a marriage are not always at an equal standing, owing
to either patriarchy or economic dependence of women, and cannot
choose to dissolve the marriage entirely at their expense.
• Women are still considered as properties of their husbands and
abandoned by their families after marriage.
• Issues in such a sphere cannot be resolved with a black-and-white
approach. In a country where divorce is still considered a social
fallacy or taboo in the 21st century, for many people who are unable to
support themselves or rely on their families, this remedy encroaches
upon their ability of separation without a divorce. This section grants
the court the authority to force individuals to cohabitate with their
partners, against their will and volition, which in many cases can cause
to be a threat to their safety, security and even life. It is of my
opinion that the courts, while ruling in the favor of the section’s
constitutionality, have disregarded its practical aspect and issue.
 RESTITUTION OF CONJUGAL
RIGHTS IN MUSLIM LAW
• In the famous case Abdul Kadir V. Salima
(1886), Court held that, “Muslim marriage is a civil
contract between bride and groom. The concept of
Muslim marriage is closely related to the concept of
contract because some terms and conditions should be
fulfilled for a valid marriage like a valid contract. In
India there is no specific statute to regulate Muslim
marriages, it is according to the personal law Shariat.
The Muslim Personal Law (Shariat) Application Act, 1937
simply states that with regard to marriage, succession,
inheritance, and charities, Muslims are governed by their
law (Shariat). However, the Dissolution of Muslim
Marriage Act, 1939, provides for certain grounds for
divorce available to Muslim women. The Muslim Women
(Protection of Rights on Marriage) Act, 2019 criminalizes
talaq.
• Restitution of conjugal rights
• Restitution of conjugal right is one of the
reliefs that is provided to the spouses who are
in agony in the institution of marriage. any of
them fails to fulfill such obligation or
deliberately avoid Co- habitation then the
other party can approach the court. Restitution
of conjugal right is also known as the ‘Right to
stay together.
• In Muslim law if the husband either deserts
the wife or neglects to perform his marital
obligation without any proper reason then the
wife can approach the court for restitution of
conjugal rights. Husband can also approach the
court for restitution of conjugal right.
• Jani and others
V.Mohammed Khan(AIR
1970 J&K 154), in this
case, the court held that
a husband is entitled to a
decree for restitution of
conjugal rights if the
wife has refused to live
with him.
• If a person wants to file
a suit for restitution of
conjugal right, either the
spouse has withdrawn him
or herself from the
society of other, without
any reason.
 Moonshee Bazloor V.
Mohammed Khan (1867)MIA55

• The court held that, if a wife without

lawful causes ceases to cohabit with her
husband, he may sue the wife for
restitution of conjugal right.
• In Muslim law, when a suit filed by the
husband for the restitution of conjugal
right the wife can defend the suit on the
certain grounds.
DEFENCES
1) Validity of marriage
If there is no valid
marriage (terms and
condition of marriage
not fulfilled) wife can
defend the suit on the
ground of the marriage
is not valid marriage. In
this defence, a decree
of the court will not
grant favour to the
husband.
 Bakh Bivi V. Quain Din (1934)
Lahore
• A Muslim husband married Muslim women
during the period of iddat.
• The consummation of marriage took place
after the expiry date.
• His wife deserted the husband and he sued
for restitution of conjugal right.
• Court held that the marriage is not valid,
because the marriage takes place at the
time of iddat.
• Decree for the conjugal right could not be
passed in favour husband.
2) False charge
of adultery
‘Husband makes
a false charge
on adultery
against wife’, is
a good defence
for wife in a
suit of
restitution of
conjugal right.
3) Legal cruelty
A wife can defend a suit for restitution of
conjugal rights on the ground that the
husband is guilty of cruelty. When the wife
has a reasonable apprehension that her life is
unsafe, the court will not compel her to live
with her husband
Itwari v. Ashgari (AIR 1960AII 684)
In this case, the court held that, if a Muslim
husband suit for restitution of conjugal right
to his first wife after the second marriage,
the court may not compel the first wife to
live with him.
• In Muslim law, a wife is not entitled to
successfully defend a suit for restitution
of conjugal right on the ground that her
husband has another wife.
• But in some circumstances, the second
marriage of the husband results in cruelty
to the first wife.
• Muslim males can have four wives at a time.
• But Muslim women can have only one
husband at a time
4) Non- payment of prompt dower
In the case, Abdul Kadir V. Salima
(1886)8AII 149
Court held that there was no right of the
wife to refuse to return to the husband
after the marriage had been consummated
on the ground that the dower is not paid. If
the husband has failed to pay the prompt
dower on demand by the wife she can
defend the suit.
5) Impotency of
husband
• If the husband was
impotent court will
not compel the wife
to live with him.
• If the wife is not
ready to cohabit with
the husband, he can
sue for the
restitution of
conjugal right.
 RESTITUTION OF CONJUGAL
RIGHT IN PARSIS LAW
SECTION 32A. Non-resumption of cohabitation or restitution of
conjugal rights within one year in pursuance of a decree to be ground
for divorce.—
(1) Either party to a marriage, whether solemnized before or after the
commencement of the Parsi Marriage and Divorce (Amendment) Act,
1988 (5 of 1988), may sue for divorce also on the ground,—
(i) that there has been no resumption of cohabitation as between the
parties to the marriage for a period of one year or upwards after the
passing of a decree for judicial separation in a proceeding to which they
were parties; or
(ii) that there has been no restitution of conjugal rights as between the
parties to the marriage 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.
(2) No decree for divorce shall be granted under sub-section (1) if the
plaintiff has failed or neglected to comply with an order for maintenance
passed against him under section 40 of this Act or section 488 of the
Code of Criminal Procedure, 1898 (5of 1898) or section 125 of the Code
of Criminal Procedure, 1973 (2 of 1974).
 SECTION 36 OF THE PARSI
MARRIAGE AND DIVORCE
ACT, 1936
Suit for restitution of conjugal rights
Where a husband shall have deserted or without
lawful cause ceased to cohabit with his wife, or
where a wife shall have deserted or without lawful
cause ceased to cohabit with her husband, the party
so deserted or with whom cohabitation shall have so
ceased may sue for the restitution of his or her
conjugal rights and the Court, if satisfied of the
truth of the allegations contained in the plaint, and
that there is no just ground why relief should not be
granted, may proceed to decree such restitution of
conjugal rights accordingly.
 THE INDIAN DIVORCE ACT
1869
PART VII-RESTITUTION OF CONJUGAL RIGHTS

SECTION 32: Petition for restitution of conjugal rights :

When either the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other, either wife, or
husband may apply, by petition to the District Court or the High
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.

SECTION 33: Answer to petition :

Nothing shall be pleaded in answer to a petition for restitution of
conjugal rights, which would not be ground for a suit for judicial
separation or for a decree of nullity of marriage.
 GENERAL ANALYSIS OF ALL
PERSONAL LAWS
• In modern India, the remedy is available to
Hindus under Section 9 of the Hindu Marriage
Act, 1955;
• To Muslims under their personal law;
• To Christians under Section 32 and 33 of the
Indian Divorce Act, 1869,
• To Parsis under Section 36 of the Parsi
Marriage and Divorce Act, 1936 and
• To persons married according to the
provisions of the Special Marriage Act,
Section 22 of the Special Marriage Act, 1954.
• The provisions for restitution of conjugal
rights are identical in Section 22 the Special
Marriage Act, 1954 and Section 9 of the
Hindu Marriage Act, 1955.
• It is 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 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.”
The restitution of conjugal
rights is often regarded as a
matrimonial remedy. The
remedy of restitution of
conjugal rights is a positive
remedy that requires both
parties to the marriage to
live together and cohabit
• A Christian husband and
wife can also apply for an
order of restitution of
conjugal rights.
• The Court cannot pass
the decree for following
reasons:
• Cruelty of husband or
wife; or
• If either of the spouse
is insane; or
• If any one of the spouse
marries again.
• Where a husband/wife shall have
deserted or without lawful cause ceased
to cohabit with his/her spouse, the party
so deserted or with whom cohabitation
shall have so ceased, may sue for the
restitution of his or her conjugal rights
• The court if satisfied of the truth of the
allegations contained in the plaint and that
there is no just ground why relief should
not be granted, may proceed to decree
such restitution of conjugal rights
accordingly.
• When either of the spouses has withdrawn
from the society of the other without
reasonable cause, the other person may file a
suit for restitution of conjugal rights under
Section 9 of the Hindu Marriage Act, 1955.
• Similarly a Christian husband or wife can file a
petition for restitution of conjugal rights
under Section 32 and 33 of the Indian Divorce
Act, 1869.
• The provision under Muslim law and Parsis law
is almost the same as under the modern Hindu
law.
• A petition for restitution of conjugal rights is
maintainable only when there is a valid
marriage.
• Under the Hindu Marriage Act, 1955 anything which
constitutes a ground for nullity, dissolution of marriage
or judicial separation is a defence against a petition for
restitution of conjugal rights.
• Accordingly under the Section 33 of the Indian Divorce
Act, 1869 applicable for Christians nothing can be
pleaded as defence against a petition for restitution of
conjugal rights which would not be a ground for judicial
separation or for a decree of nullity of marriage.
• Under Muslim law grounds of void and irregular
marriages, marriage avoided by the exercise of option
of puberty and other provisions under the Dissolution
of Muslim Marriage Act, 1939, are defences for a
petition for restitution of conjugal rights.
• A petition may also be rejected if the husband has been
made an outcaste by his community.
• As far as the Hindus and Christians are concerned the
existence of a co-wife is a sufficient cause entitling the wife to
withdraw herself from the society of her husband which can be
taken as a defence by the wife against a restitution petition.
• While under Muslim law controlled polygamy is allowed. So, a
Muslim wife cannot refuse the comfort-consortium to husband
because of husband’s taking a second wife.
• But in certain situations, a husband’s second marriage may
involve cruelty to the first wife justifying her refusal to live
with him.
• In Itwari v Asghari, a restitution petition filed by the Muslim
husband against his first wife the court had held that it cannot
compel the wife to live with husband and can refuse the relief if
the court feels that it would not be just and reasonable to do or
it would be inequitable to pass decree.
• In India bigamous marriages are now to great extent
disapproved by the courts.
• Some High Courts have considered it as cruelty by the husband
and denied on that ground the relief of restitution of conjugal
rights.