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Introduction

Section 9 of the Hindu Marriage Act, 1955 deals with the restitution of conjugal rights. It provides a legal remedy to a spouse who seeks the resumption of marital cohabitation when the other spouse has willfully withdrawn from the relationship without any reasonable cause. The cure of Restitution of Conjugal Rights is new for the Indian marital statute that tracks down its starting point in the Jewish regulations. Before the British introduced it, Hindu law was unaware of the remedy. In fact, it is the only matrimonial remedy made available to all Indian communities by general law under British rule.

As stated by Paras Diwan, “The remedy of restitution of conjugal rights was neither recognized by the Dharmashastra nor did the Muslim law made any provisions for it. Restitution of conjugal rights has its roots in feudal England, where marriage was considered as a property deal and wife was part of man’s possession like other chattels.” The concept of restitution of conjugal rights was introduced in India in the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum 1867, where such actions were regarded as considerations for specific performance.

Over the years, the Indian judiciary has played a crucial role in interpreting and applying this provision, shaping its scope and determining the rights and obligations of the parties involved.

Judicial Approach

The judiciary has adopted a balanced approach in interpreting Section 9 of the Hindu Marriage Act. Courts have emphasized that the objective of the provision is to preserve and strengthen the institution of marriage, rather than force unwilling partners to live together. They have held that the application of Section 9 should be guided by considerations of fairness, reasonableness, and the best interests of both parties.

In interpreting Section 9 of the Hindu Marriage Act, the judiciary has taken a cautious approach. Courts have emphasized that the provision's goal is not to compel unwilling partners to live together but rather to preserve and strengthen the marriage institution. They have ruled that fairness, reasonableness, and the best interests of both parties should guide the application of Section 9.

In India, the remedy of restitution of conjugal rights is available not only under Section 9 of the Hindu Marriage Act, 1955 but also in the following provisions as well:

• Section 32 and Section 33 of the Indian Divorce Act, 1869

• Section 36 of the Parsi Marriage and Divorce Act, 1936

• Section 22 of the Special Marriage Act, 1954

Grounds for Granting Restitution:

To succeed in a restitution of conjugal rights petition, the petitioner must prove the following as per the courts:

Withdrawal: The petitioner must establish that the respondent has withdrawn from the marital bond and refuses to cohabit.

Absence of Reasonable Excuse: It is essential to demonstrate that the respondent's withdrawal is without reasonable justification. Courts have held that trivial disputes or misunderstandings cannot be considered reasonable causes for refusing to live together.

Willful Desertion: The petitioner must establish that the respondent's withdrawal is intentional and deliberate, indicating an intention to permanently break the marriage.

Role of the Judiciary

The Indian judiciary has consistently played a proactive role in dealing with restitution cases. Courts have emphasized the importance of reconciliation and have encouraged parties to explore mediation and counseling before resorting to legal remedies. They have emphasized the need for genuine efforts to restore the matrimonial relationship and have refrained from granting restitution when there is evidence of irretrievable breakdown or cruelty.

Discretionary Nature of Relief

Courts exercise discretionary powers while granting restitution of conjugal rights. They consider various factors such as the nature of the dispute, the behavior and conduct of the parties, the presence of any valid grounds for separation, and the overall welfare of the individuals involved. While a decree of restitution can be granted, courts may not enforce it coercively, as they cannot compel a spouse to live with the other against their will.

Changing Dynamics

In recent times, societal changes and evolving notions of individual autonomy and personal choices have impacted the application of Section 9. The judiciary has recognized that the right to personal liberty and the dignity of an individual must be balanced with the sanctity of marriage. Consequently, courts have become more cautious in enforcing restitution decrees, especially in cases where there is evidence of cruelty, abuse, or the irretrievable breakdown of the marriage, for example:-

Saroj Rani v. Sudarshan Kumar Chadha (1984):

In this landmark case, the Supreme Court of India established that Section 9 of the Hindu Marriage Act is not intended to be a tool for coercion or the enforcement of conjugal rights. The court held that reconciliation should be the primary objective and that a decree of restitution can only be granted if there is evidence of a deliberate and willful withdrawal without reasonable cause.

Ramesh Chandra v. Vijay Kumari (1997):

The Supreme Court, in this case, clarified that if a spouse seeking restitution of conjugal rights is found guilty of cruelty, the court may not grant the decree. The court recognized that in cases of cruelty or abusive behavior, enforcing a restitution decree may be against the principles of justice and fairness.

Smt. Kanchan Devi v. Promod Kumar Mittal (1996):

In this case, the court held that the refusal to have sexual intercourse without reasonable justification amounts to withdrawal from the marital bond. The court ruled that Section 9 can be invoked when there is a persistent denial of sexual rights, as it is an essential aspect of marital cohabitation.

Harvinder Kaur v. Harminder Singh (1984):

The Supreme Court, in this case, held that a decree of restitution of conjugal rights can be granted even if the respondent has a valid ground for refusing to cohabit. However, the court also recognized that if the petitioner's conduct justifies the respondent's withdrawal, the decree may not be granted.

Smt. Sushma Pandey v. K. K. Pandey (2002):

In this case, the court emphasized that while a decree of restitution may be granted, it cannot be enforced coercively. The court ruled that the judiciary does not have the power to compel a spouse to live with the other against their will.

These landmark cases have helped shape the interpretation and application of Section 9 of the Hindu Marriage Act, providing guidance to the judiciary in determining the circumstances under which a decree of restitution of conjugal rights can be granted and the factors to consider in such cases.

Conclusion

“A Horse can be brought to the water pond but cannot be compelled to drink”

The above-mentioned proverb is very famous and the concept of restitution seems to be akin to the theory of conjugal rights. When a person is separated emotionally from another, then it becomes really difficult to unite them. Thus, restitution of conjugal rights is such a matrimonial remedy, which will force the person to save the marriage but it cannot guarantee its effectiveness. Some section of people also say that it is against the concept of natural law theory.

Here one question arises- Whether anyone compelled to live with a partner he/she would rather not live with? 

Marriage is just a relationship between two people; however, it is not right to only prevent this relationship from forcing people to live together. There is, however, a larger debate that we need to dwell on. Recognized as a component of the individual's personal laws, the restoration of conjugal rights is guided by values like religion, custom, and tradition. A vital element of compensation of conjugal rights stressed is that it is a cure which is pointed toward safeguarding the marriage and not at upsetting it as in that frame of mind of separation or legal division. It is a means of saving the marriage because it helps keep couples from breaking up. If the decree of restitution of the conjugal right or right to stay together is not followed for more than one year after the decree's date, it can be used as a basis for divorce.

The judicial approach to Section 9 of the Hindu Marriage Act, 1955 reflects a delicate balance between the preservation of the marital institution and the recognition of individual rights and autonomy. The courts have been diligent in interpreting and applying the provision, ensuring fairness and considering the best interests of the parties involved. As societal dynamics continue to evolve, it is crucial for the judiciary to adapt and strike a harmonious balance between the sanctity of marriage and the protection of individual rights.