An ideal marriage allows the husband and wife to cohabit with each other i.e live together and perform their marital obligations. The Hindu Marriage Act defines marriage as sacred contract that solemnizes the marriage creating a divine institution. The conjugal right entitles them to enjoy marital benefits legally and to fulfil their rights and responsibilities as two people and their families unite.
When one of the spouses, abandons or withdraws from the partner and society without any reasonable excuse or cause, Section 9 Hindu Marriage Act comes into play.
Meaning and Concept – Restitution of Conjugal Rights
Simply put, restitution refers to the restoration of rights. The rights those previously existed and enjoyed by the husband and wife. The re-establishment of marital bond to bring back the deserted husband in order to resume the consummation of marriage is Restitution of Conjugal Rights.
The foundation to use the right to bring a suit for restitution of conjugal rights is when one spouse deserts or isolates themselves from the other without any justified reason. In case of violation of such rights, the offended party can file petition in the court for restoration of the rights.
This legislative remedy intends to protect and maintain the sanctity of marriage by reinstating the deserting spouse back in the marriage. It preserves the wedlock by re-instating the deserted spouse by court’s intervention.
A decree of restitution of conjugal rights implies that the party who leaves is ordered to live with the aggrieved party by the court.
However, it is done after the court determines the legal ground for the withdrawal and that the petitioner was left without any reasonable ground, may pass a decree for the restitution of conjugal rights to reinstate the marriage and resume cohabitation.
Therefore, it is a principle wherein the court dictates the deserter to provide affectionate companionship and comfort i.e consortium of the other spouse who left without a reasonable excuse.
Essential Conditions for a Decree of Restitution of Conjugal Rights
- Withdrawal from society
Husband and wife are entitled to each other’s company and comfort i.e consortium and if either of the parties ceases to do so, the aggrieved party needs to prove that to the court. However, the act of withdrawal must not be temporary or without an intention to withdraw permanently.
- Reasonable excuse
There has to be a reasonable explanation as to why the husband has deserted the spouse. It is not possible to give an exhaustive definition as to what is a ‘reasonable excuse’. If it is established that the respondent has deserted where a reasonable cause or excuse exists then the petition for restitution for conjugal rights might fail.
Reasonable excuses might include situations where deserter husband is having another wife, is unsafe to be with the petitioner, faces acts of violence etc.
- Court’s Satisfaction
It is on the petitioner to prove to the court to its satisfaction that respondent has withdrawn from the society and abandoned the petitioner without any substantial reason. The petitioner also needs to present reasons to reclaim the marital bond satisfying the court.
- Lack of Legal grounds
The court can deny the decree on the basis of justifiable reason for withdrawal. Section 23 imposes on the court the duty to inquire into and pass a decree under section 9 after checking certain grounds like grossly indecent behaviour, agreement to live separately etc.
- A petition for separation cannot lie if the marriage between the parties was void ab initio. This means that the marriage between the applicant and defendant should be legal, valid, and existing to enable Section 9. There has to be a lawful wedlock between the couple.
Burden of Proof
- The initial burden to prove that the respondent has withdrawn from the society and has abandoned the petitioner is on the petitioner. The petitioner demonstrates to the court that the respondent has withdrawn from the society and abandoned without any just cause.
- Once such burden is discharged, it is for the respondent to prove that there existed a reasonable excuse for the withdrawal. The respondent demonstrates to the court that he had justifiable reasons to abandon the spouse.
Constitutional Validity of Section 9
The issue pertaining to the constitutional validity of Section 9 has been on the grounds that it violates fundamental rights of the constitution and deprives the couple of their privacy and autonomy.
The concern regarding the validity arose with the argument that violates an individual’s right to privacy. It vehemently denies the spouse his or her free choice to live with each other or not and decision to abandon the other for justifiable reasons under Article 21 of the Constitution of India.
In T.Sareetha v. Venkata Subbaih, the court observed that Section 9 is a remedy violating the right to privacy and human dignity guaranteed under Article 21 and is arbitrary void under Article 14 of the constitution. It was stated by the Court that if the wife is compelled to live with her husband that will also violate her right to privacy and that the remedy of restitution offends the inviolability of the body and mind and invades the marital privacy and domestic intimacies of such person.
However later, the Supreme Court in Saroj Rani v. Sudharshan Kumar, held that Section 9 cannot be said violative of Article 14 and 21 of the constitution stating that the object of the degree is to offer an inducement for the spouse to live together, and it does not force an unwilling wife to engage in sexual relationships with the husband. It was held that Section 9 seeks to reconcile the marital bond to preserve the institution of marriage and unity of the family.
Drawbacks and Suggestions
Section 9 has come out to be controversial and debatable with changing trends and patterns of society. The intention of the legislators were concerned on social barriers to prevent the breaking of wedlock and sacrament of the marriage institution.
However, the section has not been perceived accordingly, it is argued that the section forces the respondent to cohabit against his wish to do so. Basic fundamental rights allows a person to choose a partner and with whom to reside for to enjoy the benefits of marriage.
It is important to acknowledge that if an adult person takes the decision to walk off the marriage as it becomes completely unworkable, such decision should be respected. The section has received backlash for not providing decisional autonomy to spouses whether to continue the marriage or not. Willingness and voluntary participation in a marriage to is a must to maintain its actual essence. The courts should primarily consider the will of the spouses and investigate reasons of desertion properly.
Section 9 intends to reconcile and revive the marital bond and unity between the estranged spouses. It is the endeavour of the court to reinstate and resume the cohabitation of the couple. The decree by the court is simply a remedy to bring consortium between the couple and does not force them against their will.
But if seen with another lens, the Section forces the spouse who abandons back in the marriage just to restore the sacrament of marriage, which makes the section debatable based on violation of right to privacy.