CONJUGAL RIGHTS

UNIT- 5

 Relief of conjugal rights is not Indian concept. Initially, this matrimonial relief was not present.
 Sec 9 of Hindu Marriage act provides for this relief of matrimonial rights.

1. S.9 HMA
2. Historical Background
3. Society ( Cohabitation)
4. Matrimonial Home (Choice of Matrimonial Home)
5. Withdrawal from society – Weekend’s Marriage
6. Reasonable Excuse
7. Constitutional Validity of S.9 HMA
8. Provision under Muslim law, Christian law and Parsi law.

 Restitution means to restore and conjugal rights means rights of spouses.

 Conjugal rights were not recognised by either Hindu law or Muslim law.
 Hindu law treated marriage as sacrament , so there was no question of divorce initially and therefore no
conjugal right.
 It was established by courts in British era and made available concept of conjugal rights.
 This remedy was originally found in Jewish law and from them it was borrowed by English people ,i.e.
Christian law.
 From English law  to Hindu (s.9) and Muslim law.
 In Medieval times when marriage take place , wife and children were treated like chattels and belonging
to husband and husband was the master.
 Excommunication - out casting , socially excluded and arrest was punishment given to wife for leaving
the home in respect to conjugal rights of the husband.
 Under the statue of George III
 In case , wife has left conjugal home and husband has attained remedy via court and supposing under
this remedy wife is required to resume cohabitation and in case wife refuse , such decree can be
enforced via attachment of property.

DATE: 27 SEP 2023

Matrimonial Proceeding and Property Act of 1970- Abolished the remedy of restitution of conjugal right-
spouse is compelled to come back.
In Shakira Bano v/s Ghulam Mustafa – restitution of right is a relic of anicient time when slavery and quasi
slavery was regarded as natural , this is particularly so after the constitution of India came into force which
guarantees personal liberty and equality of status and opportunity to men and women alive

S.9 of Hindu Marriage ACT:-

The ingredient:-
1. Withdrawal from the society of others spouse w/o justifiable excuse
2. The court is satisfied about the truth of the statement made in the petition
 3. There is no legal bar as to why the m
4. S.23 provides for those legal bars.
When these ingredient are met , remedy for conjugal rights are provided.
The burden is on respondent to prove that there was reasonable excuse for him/her to withdraw from the
society of the other spouse.
Object:- aim to restore the marital togetherness between the spouse but it is to be seen whether remdy does
good or bad.
Once marriage takes place the spouses have to comfort the company of each other and when they leave the
society of other w/o any justifiable reason they should get remedy.
Saroj Rani v. Sudarshan Kumar Chadha:- Highlighting the basis of remedy
The essence of marriage is a sharing of common life, sharing of all the happiness that life has to offer and all
the misery that has to be faced in life and experience of joy that comes from enjoying in common , living
together is a symbol of such sharing in all its aspects , living apart is a symbol indicating the negation of
such sharing , it is indicative of destruction of the essence of marriage, that is breakdown and if continued
for a fairly long period of time , it would indicate destruction of the essence of marriage , i.e. it amounts to
inretrible breakdown of marriage.
Since this is an affirmative remedy , it envisages valid marriage.
Ajit Singh v/s Paramjit Kaur 1978:-
It is not enough with the validity of marriage bc the remedy
It is not enough that marriage took place in fact , proper ceremonies should have taken place for validating a
marriage , in order to avail remedy for conjugal right

Asha Kumari v/s Satish Kumar:-

When a man within the subsistence of his first wife he cannot claim restitution from bigamous marriage as
marriage is void , for that he has to proof that first marriage is either dissolved or the wife is dead.

Tara Bano v/s Iqbal Mohd 2009

The wife was married ( appellant) to the respondent (1st Husband ), she was contracted into marriage by his
father when she was 7 year old , now after attaining age of puberty she has repudiated that marriage and
remarried someone else , after marriage she never joined her matrimonial home (way of repudiation) and
therefore there was no question of remedy for conjugal right. The marriage was never consummated as she
never joined her husband.
If after attaining puberty a women does not repudiate the marriage
It is not necessary for a Muslim lady to attain a decree for dissolution of marriage after she exercises her
option of puberty upon attaining the age of 15 year , if the fact of this option is true and court accepts such
findings in her favour in the suit filed by his husband in her favour , it is no longer necessary to obtain the
decree of the court
In this case , the repudiation of marriage was proved in this case and was acknowledged by the husband.
Exercise of option of puberty is proved in the court then obtaining the decree of the court is not a sine qua
non.
RESTITUTION OF COJUGAL RIGHT:-
 Only positive restitution remedy , rest of the remedies break the marriage.
SEC 9:- 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.]

 This remedy ensures that the spouse is brought back to resume cohabitation .
 Marriage must be a valid marriage for this remedy.
CONCEPT UNDER THE REMEDY:-
1. SOCIETY:- society or cohabitation used interchangeably. Society implies marital cohabitation
(Summum Bonum)
In Evans v/s Evans (1947):- cohabitation is a state of affairs not merely residence that is while
performing their respective role the wife maintains and performs her wifely duties and is acknowledged
by husband as his wife and husband behaving as husband. (Lord Goddard)
 Matrimonial Home:- is imp in a conjugal relationship but more imp is cohabitation as it implies each
other society , companionship etc.
 Choice of matrimonial home :- who has the right to decide the locus of matrimonial home.
 Halsbury’s Law of England 4th edition Vol.13:- It is the husband’s duty to provide with the home Acc. to
his circumstances there is not absolute rule whereby either party is entitled to decide to the other where
the matrimonial home shall be the matter is to be settled by agreement b/w the parties by process of give
and take and by reasonable accommodation.

2. WITHDRAWL FROM SOCIETY:-

 Withdrawal from state of affairs not from a particular place.
 It should be a voluntary act.

DATE: 06 Oct. 23
CASES:-
1. Tirath Kaur v/s Kripal Singh AIR 1964 P&H. 28
2. Gaya Prasad v/s Bhagwati Saran AIR 1966 MP 212.
3. Pravinaben v/s Sureshbhai Tribhovan Arya AIR 1974 Guj.69.
4. N.R Radhakrishnan v/s Dhanalakshmi AIR 1975 Mad. 331.
5. Mirchumal v/s Devi Bai AIR 1977 Raj 113.
6. Swaraj Garg v/s K.M. Garg AIR 1978 Del 296.
7. Kailash Wati v/s Ayodhya 1977.
8. Shanti v/s Romesh 1971 Allahabad.
 If withdrawal is there which is voluntary act the aggrieved spouse , the aggrieved one has the right to
file for restitution of conjugal right
 Where court finds that there was no justifiable grounds for the spouse to withdraw , then court passes
order for restitution the conjugal right.
 Where the wife has taken up the employment with w/o consent of husband or under compulsion and
then when husband ask wife to quit the job to join the husband and the wife refuses, whether such a
refusal on part of wife whether this amount to withdrawal or not?
 This ques came up in Tirath Kaur v/s Kripal Singh AIR 1964 for the 1st time.
 In Tirath case the parties were married and the husband was in bad financial condition and due to it
the husband has asked wife to take some training course or tailoring and upon husband’s demand she
did that but the cost of such course was unable to be paid by husband and she gets the support from
her father and thereafter she completes the degree and gets the job and that job was away from
husband’s place. As and when time permitted the wife visited her husband and use to give share to
his husband and father in law and wife was asked to quit the job and the wife refuses.
 In Gaya Prasad v/s Bhagwati Saran , the facts were kind of similar and wife was asked to leave the
job and she refuses.
 In Pravinaben v/s Sureshbhai Tribhovan Arya , it is after the marriage that the wife took the job
with the consent of the husband and cohabitation aspect was similar to Tirath’s case. The husband
asked the wife to quit the job and wife refuses.
 In N.R Radhakrishnan v/s Dhanalakshmi, the husband and wife were employed before marriage
and the husband was a driver in state corporation and wife was a teacher and wife was in a better
financial condition , after transfer the husband moves to diff place and ask wife to move with him
leaving the job.
 In Mirchumal v/s Devi Bai: they were posted in diff place and the wife use to visit him , wife
resigns the job and stays with the husband and due to financial condition again take the job which
was away from husband and husband filed petition for restitution of conjugal rights , the wife
pleaded that I am not averse to cohabitation and always willing to visit his husband but the husband
still files the petition.
 In Kailash Wati v/s Ayodhya Prasad 1977:- the facts are the same.
 The court’s observation in N.R Radhakrishnan v/s Dhanalakshmi case is very pertinent . Four type
of situation:-
(a) Marries women already in job
(b) Husband encourages wife to take the job
(c) Where the wife accepts the job after marriage away from matrimonial home and against the
wishes of husband.
(d) Parties under agreement take up the job with mutual understanding in different places.
 Two types of view are taken by HC’s. In
1. Tirath Kaur v/s Kripal Singh
2. Gaya Prasad v/s Bhagwati Saran
3. Kailash Wati v/s Ayodhya Prasad

 One view of HC :- Under the law, the wife’s first duty to her husband is to submit herself obediently
to his authority and remain under his protection and roof. Acc. To ordinary custom of Hindu society ,
wife is expected to perform the marital obligation at the husband’s residence and she could not
impose her unilateral decision on the husband by merely stating that she has no objection to allow
the husband to live with her at the place where she has accepted the service. Wife can’t take or
choose the employment against the wishes of the husband and if she has taken up the job with/
without the consent of the husband she must give it up and should go and live with him wherever he
may choose to take her otherwise this will amount to withdrawal from the society.
  Other view of HC:- Justice Kaju , shanti v/s Romesh , Pravinaben and Dhanalaksmi case and
Mirchumal case:- The court has taken up different stance. Mere refusal of the wife to resign her job
at the insistence of the husband is not a sufficient ground for granting a decree for restitution of
conjugal right and wife taking up the job contrary to the wishes of husband will not amount to
withdrawal from the society. The proposition that the wife must always stay under the roof of the
husband might have been right in the past but it is no longer true in the modern times and in all
circumstances just bc the wife is working at a different place can’t be termed as withdrawal from
society of the husband. Husband is also not entitled to restitution where he had treated the wife with
cruelty. In the age of equality of opportunity to both the sexes wife taking up a job or not giving it up
at the insistence of husband can’t amount to withdrawal from the society.

REASONABLE EXCUSE:-
 Sec 9 says that withdrawal should not be without reasonable excuse.
 Reasonable excuse for sec 9 are those reasons which are sufficiently grey and which compels other
spouses to withdraw.
 Desertion is a ground for divorce (2 year period given) but in withdrawal the time period is not given
in sec 9 , however it can be inferred by conduct of the parties.
 Withdrawal need not always be physical it can be under the same roof
 So , where spouses withdraw with reasonable excuse- no restitution of conjugal right.
 Reasonable excuse should be a mis construct of the spouse. Any act of omission on the part of
petitioner which makes it impossible for respondent to live with him , then it amounts to reasonable
excuse.
 Example:-If wife says that the financial condition of the husband is not good – so this is not a
reasonable excuse.
 If persistent nagging by anyone in matrimonial home , husband is a drinker etc are justifiable ground.
 In Ram Chandra v/s Adarsh 1987 (Del):- In this case, the wife goes to his home for delivery and
husband doesn’t care to visit wife or new child while being in the same city. This is not done and
when wife withdraws – it is reasonable excuse.
 In Ashok V/s Shabhnam :- Constant demand of dowry and harassment and wife withdraws-
reasonable excuse.

DATE: 09 Oct. 23
CASES:-
 RAMCHANDRA V/S ADARSH 1987 DEL 991.
 ASHOK V/S SHABNAM
 FOSTER V/S FOSTER 1956 2 ALL ER 518.
 KULDEEP KUMAR DOGRA V/S MONICA SHARMA AIR 2010 HP 58.

S.18 Hindu Adoption and Maintenance act 1956, provides a remedy to a wife that a Hindu wife w/o seeking
to dissolve can seek separate residence and maintenance from her husband and this is purely her choice.
Foster v/s Foster:- Any act of commission or omission amounted to reasonable excuse must be something
grave, weighty and convincing and it should be something more than a fad/whims.

CONSTITUTIONALITY OF S.9 HMA.

CASES:-
1. T.SAREETHA V/S T. VENKATA SUBBAIAH AIR 1983 AD 356.
2. HARVINDER KAURE V/S HARMENDAR SINGH AIR 1984 DEL.66
3. SAROJ RANI V/S SUDARSHAN KUMAR CHADDHA AIR 1984 SC 1562.

1. Here the very validity challenged as it is violative of art 21 and 14. Justice chaudhary holds the view
that remedy under s.9 must be struck down . Sec 9 of HMA is violative of right to privacy and human
dignity guaranteed by art 21of the constitution and is hence ultra vires. A degree for restitution of
conjugal right constitute the grosses form . It denies the women her free choice whether when and
how her body is to become vehicle for procreation of another human being , state coercion of this
nature can neither prolong nor preserve the voluntary union of husband and wife in matrimony.
Neither can state coercion soften the ruffled feelings nor clear the misunderstanding b/w the parties.
Sec 9 doesn’t promote any legitimate purpose based on any concept of social good and thus it is
arbitrary and violative of art 14 and 21. Sec 9 violates right to privacy through state intervention it
compels an unwilling wife to subject herself to martial intercourse with a man who is her husband it
encroaches upon human dignity bc of the forced sex and thus is an engine is operation in the hand of
husband and therefore sec 9 must be struck down.
2. Delhi HC is upholding the constitutionality. Justice Rohatgi – object of sec 9 is to bring about co-
habitation b/w estranged espouses. The remedy doesn’t only mean sexual intercourse it is one of the
elements that constitute matrimonial consortium. Matrimonial intercourse is not the “summum
bonum” while enforcing co-habitation by degree of constitution of conjugal right. Court can’t
enforce marital intercourse , it serves a social purpose as an aid to prevent break up of marriages.
Allowing constitutional law into family matters amounts to bull in the China shop. It is true that that
sexual relations constitute a most important attribute of conception of marriage but it is also true that
they don’t constitute the whole content nor can be remaining aspect of matrimonial consortium be
said to be of a trivial character. He referred to Halsbury’s law of England and further observes that
co-habitation doesn’t necessarily means sexual intercourse and refusal to sexual intercourse doesn’t
constitute refusal co-habit.

DATE:- 10 Oct. 23

S.9,S.13(1A)(ii) and S.23(1)(a) HMA.

In Saroj rani case – upheld the constitutionality on the ground that it has a social purpose to realise to help
assist estranged spouse to solve their problem and safeguards are provided under statute itself. In the clause
reasonable excuse is given which is a safeguard in itself.
Misuse of remedy:-
Sec.13 is about divorce and provide grounds for dissolution of marriage , Sec 13(1A) provides for decree of
restitution of conjugal right. Acc to this clause where decree of restitution conjugal right has been passed
and if for minimum 1 year or more than 1 year if not complied with the order , either party to the marriage
can make it a ground for divorce.
Sec 23 is about certain legal bar. It is based on principle of equity, that those who come to equity must come
with clean hands. In any matrimonial cases where court is convinced that the petitioner is not taking adv of
his/her wrong then the court may grant that relief.
Example:- Wife for whatever reason withdraws herself from the society of the husband and the husband puts
petition for restitution and decree is granted. Husband become decree holder and wife is decree debtor. Wife
proceed to comply with the decree but the husband knows how to manipulate the whole situation. We know
that if order not complied within 1 year than can file petition for divorce. Husband by design has been
frustrating all the efforts made by wife to resume restitution. Now , 1 year passes by , now 13(1)(A) is
invoked by the husband and files fresh petition for divorce. Now comes sec 23(1)(a) which says in any
proceeding under this act, includes 13(1)(A) the court will see whether the petitioner is taking advantage if
his/her wrong for granting of relief.
Ques:-Whether sec 23(1)(a) controls 13(1)(a) ? Whether this act by husband amounts to be wrongful act and
act as a legal bar?
Sec 23 controls the application of Sec 13.

DATE: 11 Oct. 23

CASE:- ISHWAR CHANDRA AHLUWALIA V/S POMILLA AHLUWALIA AIR 1962.

In 1956 husband files petition for conjugal right within 1 year of marriage , the reason is that wife left
matrimonial home and not resuming cohabitation, the wife agrees to come back when this petition was filed
but at the same time, she denies the allegation that she has separated from the home and later in 1959
husband file divorce under sec 13(i)(ix) and ground pleaded was no compliance of decree for 2 year. Wife
said in 1957 husband filed petition under nullity , which was dismissed by court and also contended that she
had made efforts to comply but husband made it difficult for her to do so. Court observes that there is force
in what wife contended and was critical of husband’ conduct and is trying to take advantage of own wrong.
Court observe that not letting wife resume cohabitation amounts to wrongful conduct under sec 23. Court is
subscribing to the view that Sec 23 controls action under S.13.

CASE:- SREEVASTAVA V/S VEENA AIR 1965

Husband applied for restitution of conjugal right and wife tried to comply but was not able to do that due to
husband . She requested the court to register compliance of decree on her part. Husband says that restitution
of conjugal right is not unilateral process. Court says that it is out of design that husband is trying to get rid
of wife, one year passes and husband tries to take divorce but court says that it is by planed and by design to
get rid of wife , the wife who is judgement debtor who is willing to comply with decree is entitled to
approach the court and apply for recording of the satisfaction of the decree by the court and thus prevent the
decree holder taking advantage and malafidely using the remedy to seek divorce.

CASE:- LAKSHMI BAI V/S LAKSHMI CHAND RAVAJI AIR 1968

CHAMAN LAL V/S MOHINDER DEVI AIR 1968
The court says that the right conferred by sec 13(1)(A) is subject to provision of sec 23(1) and if the
succeeds in establishing that the husband or the petitioner has refused to comply with the decree of
restitution of conjugal right, the court is justified in dismissing the petition for divorce in view of sec 23(1)
(a).

DIFFERENT VIEW TAKEN INTO:-

CASE:- 1. JASWINDER KAUR V/S KULWANT SINGH AIR 1980
BIMLA DEVI V/S SINGH RAJ AIR 1977.
 Conduct of the parties subsequent to the passing of decree of restitution of conjugal right can be
taken into consideration while granting relief but refusal to let compliance of the decree doesn’t
amount to a wrong within the meaning of sec23(1)(a).

CASE:- OP MEHRA V/S SAROJ AIR 1984

 Here husband obtain decree of conjugal right and gets decree and within 6 months of passing of
decree, he files alleged adultery on pat of wife and in the meantime the period of 1year passes and
restitution didn’t take place. Now, files petition under sec 13(1)(a). Coury observe that husband here
is trying to get rid of wife and is in a haste to seek divorce and acknowledges the fact that wife was
being preventive. Giving divorce will be giving premium to husband under sec 13(1A)(ii). The
decree was not passed here.

Sec 23 though has an overriding effect has not been judicially interpreted to prevent the scheming spouse
to take advantage of his own wrong . S.9 has now failed and abolished.

S.23(1)(a) controlling S.13(1-A)HMA S.23(1)(a) not controlling S.13(1-A)HMA

1. T.Srinivas v/s T. Varahlakshmi Air 1999 1. Dharmendra v/s Usha 1977 Sc 218.
Sc 595. 2. Anjula v/s Sudhir Kumar Air 2002 Sc
2. Hirachand Srinivas v/s Sunanda Air 1447.
2001 Sc 1285. 3. Manjula v/s K.R. Mahesh Air 2006 Sc
2750

In 2006 in the case “Novin Kohli v/s Neelu Kohli” SC urged the Union govt that they should look
into this aspect and add irrevetable breakdown of marriage as divorce