Hello dear readers, in this post we will take about the conjugal rights. Conjugal rights are defined under Section 9 of the Hindu Marriage Act, 1955.
Restitution of conjugal rights
Marriage is a nucleus of social life. The very purpose of marriage is that the legally wedded couple must live together throughout life, sharing pleasure and pain. It is a well-established principle that both the spouses are equal entitle to matrimonial society and comfort (consortium) of the other.
In case one spouse happens to leave the other form the matrimonial society without any reasonable causes, the other (deserted) spouse can file a petition in the District Court for the restitution of conjugal rights.
For instance, if a husband, without any reasonable causes leaves his wife and lives elsewhere, the wife can file a petition for restitution of conjugal rights of the Hindu Marriage Act, 1955. A provision to this effect has been provided for under Section 9, which read as follows-
“When either of the husbands is wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may, by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied with the truth of the statement made in such partition and that there is no legal ground why the application should not be granted may degree restitution of conjugal rights accordingly”
Thus, under subsection (1) of Section 9, the husband or wife may get the decree of restitution of conjugal rights, where the wife or husband, as the case may be-
(1) Has withdrawn from the society of other.
(2) Without reasonable excuse.
(3) The Court is satisfied with the truth of the statement made in the petition, and.
(4) There is no legal ground why the application should not be granted.
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To seek relief under Section 9, primarily the marriage must be validly married under Section 5 of the Act. The petition for restitution of conjugal rights under Section 9 of the Act is not maintainable, if the marriage of the parties (petitioner and respondent), is not a valid marriage and was subsisting at the time of the petition. The relevant case on this point is-
Parbia Ram vs. Thopali AIR 1966
In this case, it was held that if the parties of restitution of conjugal rights parties are not legally married or the marriage was not subsisting at the time of the petition, the question of granting of the decree of restitution of conjugal rights does not arise.
In Lakshmi Singh vs. Kehrabai AIR, 1966,
It was held that it was for the petitioner to provide the validity of the marriage if it was disputed by the respondent.
Withdrawal from Society
The expression ‘withdrawal from the society means cessation of cohabitation or being to an end consortium. The expression ‘withdrawal from the society of the other’ involves a mental process beside physical separation. The act of temporarily leaving the matrimonial home would not amount to withdraw from the society of the other when she had no intention to withdraw permanently.
Withdrawal from the society’ means that it is withdrawal from the totality of conjugal relationships, such as refusal to live together, refused to have material intercourse and refusal to live in company and comfort.
In Venugopal vs Lakshmi AIR, 1936, it was held that in a petition for restitution, it was not required to show that the parties were cohabiting earlier and where the spouse had not cohabited at any time after the marriage, a petition for restitution would lie if the intention not to cohabit was established.
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The reason for withdrawal from the society must be ‘grave and weighty’ and it may be distinct from a matrimonial offence.
Now the question arises whether living separately for job amount to reasonable causes?
In all the societies, the universally accepted opinion I that wife and husband must live under the same roof sharing pleasure and pains and the wife must be obedient to the husband. Manu has said “the wife should obey her Lord”
However, in modern society, under Rapid Changing socio-economic cultural environment, a number of housewives are taking up employment, which occasionally becomes a cause for conflict between her job and material obligations.
The question arises whether taking up of a job by wife, at a place other than that of her husband or a husband’s desire to give up her job, amount to desertion and her withdrawal from the society of her husband without reasonable excuse and whether the husband could get a decree of restitution of conjugal rights.
Tirad Kaur vs Kripal Singh, AIR, 1964,
In the instant case, the respondent (wife) with the consent of her husband had undergone a tailoring course and joint employment elsewhere. After some time, she was asked to resign the job (by her husband). As she refused to do so, the husband fields a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights.
The question as to the course to be adopted if the wife refuses to resign her job and the husband refuses to allow the wife to continue in the job is difficult to decide. Mare refusal on the wife’s part to resign her job is not a sufficient ground for the husband to seek relief for the restitution of conjugal rights.
The Court has to decide on the circumstances of each case which of the parties is reasonable. If the attitude of the wife is reasonable the Court may dismiss the suit in its discriminatory jurisdiction. If it is unreasonable it will degree the suit on the ground that the wife has no just defence to the action.
No legal ground to deny the relief
If the Court is satisfied with the truth or genuineness of the statement made in the petition and there is no legal ground, why the relief should not be granted, the Court will pass the decree for restitution of conjugal rights under Section 9 of Hindu Marriage Act, 1955.
An agreement to live separately is not valid
If the parties to a marriage have entered into an agreement to live separately, such agreement is not valid.