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Restitution of conjugal rights


Section9oftheHinduMarriageAct,1955 embodies the concept of Restitution of Conjugal Rights

under which after solemnization of marriage if one of the spouses abandons the other, the
aggrieved party has a legal right to file a petition in the matrimonial court for restitution of
conjugal rights. This right can be granted to any of the spouse. This section is identical to
section 22 of the Special Marriage Act, 1954.[2]
TheprovisionisinslightlydifferentwordingsintheParsiMarriageand Divorce Act, 1936, but it has
been interpreted in such a manner that it has been given the same meaning as under the Hindu
Marriage Act, 1955 and the Special Marriage Act, 1954. However, the provision is different
under the section 32 Indian Divorce Act, 1869 but efforts are being made to give it such an
interpretation so as to bring it in consonance with the other laws. The provision under Muslim
law is almost the same as under the modern
Hindulaw,thoughunderMuslimlawandundertheParsiMarriageand Divorce Act, 1936 a suit in a
civil court has to be filed and not a petition as under other laws. Lawful wedlock between two
persons imposes an obligation on both the
spousestocohabitwitheachotherandtolivewitheachother.The expression “withdrawal of
society” means cessation of cohabitation, to bring an end the consortium. The cessation of
cohabitation or bringing to end of consortium should be the act of the respondent. The word
"society" here means the same thing as cohabitation. Refusal to live with other spouse, refusal
for marital intercourse, refusal to give company and comfort to each other, all amounts to
withdrawal from society. In a petition for restitution of conjugal rights, it is not required to
show that the parties were cohabiting earlier. If the parties were not staying together earlier,
the petition would lie when one of the parties intends to cohabit
withtheother.Thispetitioncanbepresentedevenifthemarriageisnot consummated and the other
party wants to consummate the marriage from English law.
InEnglishlaw,wifeandhusbandweretreatedasasingleentityand therefore a wife could not sue her
husband or vice versa From England these
rightspassedontohervariouscoloniesontowhichherAnglo-Saxon jurisprudence was grafted and
India was no exception in this regard. The provision was never a part of Hindu, Sikh, Muslim or
Parsi Law, but the British imported it into India, through judicial pronouncements. Thus in the
absence of any statutory law the Indian courts passed decrees for restitution of conjugal rights
for all religious communities. There is no warrant in authority extending over 150 years in
England from where we haveborrowedthismatrimonialremedy.Section9inasenseclearlyis
inconsistent with the law as expounded in England and India in a stream of authorities. As long
ago as 1866 the Privy Council in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, (1867) 2
Moo IA 551 applied to this country the English remedy of restitution. In Indian legislature in
1955 codified this remedy. Section 9 had merely aped the British and 2 mechanically re-enacted
that legal provision of the British ecclesiastical origin."