September 26, 2022 In Family Rights and Laws, HINDU LAW


The restitution of conjugal rights means the re-establishment of the marital relationship between husband and wife because the prime objective of marriage is that parties will consummate it and enjoy the society and comfort of each other.

The institution of marriage creates a relationship between a husband and a wife, which in consequence develops subsequent attachments. Different sets of rights and obligations are also being established out of this relationship. These responsibilities and obligations all constitute “conjugal rights,” which constitute the cornerstone of marriage. In its literal definition, the phrase “conjugal rights” refers to the “right to remain together.

It is a widely accepted norm that one partner should support the other during difficult times, be available to console, and show their partner affection. However, if one of the partners separates from the other without a good reason, the harmed party may go to court to request redress. The only matrimonial remedy that is available is restitution of conjugal rights.

The Restitution of Conjugal Rights’ sole purpose

Marriage is respected as a sacred institution in India. Even if there are numerous personal laws and marriage can be performed in India according to various norms for various religions, it is still regarded as a sacred union that serves as a framework for the smooth establishment of society.

Protecting the sanctity of the institution of marriage is the fundamental idea behind the recognition of the Restitution of Conjugal Rights.

Restitution of Conjugal Rights for Hindus under Hindu Marriage Act

 Conjugal rights, as mentioned above, refer to the sexual privileges and duties associated with marriage. Restitution of Conjugal Rights (ROCR) is controlled by Section 9 of the Hindu Marriage Act under Hindu law. The Hindu Marriage Act’s Section 9 states as follows:

Section 9 – The Hindu Marriage Act, 1955

Restitution of Conjugal Rights, “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.

Essentials of Section 9 of Hindu Marriage Act

A “marriage saving” clause is section 9 of the Hindu Marriage Act. When a partner or spouse violates a reasonable clause and moves out without permission, Section 9 of the Hindu Marriage Act may be used. In accordance with this Section, the Court may order the couple to remain together if certain requirements are met and the lawsuit is successful. For Section 9 to be invoked and successful, three crucial requirements must be satisfied.

These are three important requisites to be fulfilled for Section 9

  • Spouses must not be staying together.
  • Withdrawal of a party from the other must have no reasonable ground for such withdrawal.
  • The aggrieved party must apply for restitution of conjugal rights

Restitution of Conjugal Rights under Muslim Law

The remedy of Restitution of Conjugal Rights is available to Muslims under personal law. Under Muslim law, the conceptualization of the provision for restitution of conjugal rights can be put together as follows

“Where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, may put either party on terms securing to the other the enjoyment of his or her rights”

As a result, this idea has been associated with ensuring that the other spouse can exercise their legal rights. This used to be related to a contract’s specific performance as well. In contrast to other laws, Muslim law requires a lawsuit to be filed, not a petition.

A claim for restitution of conjugal rights can only be maintained if the marriage is legal. Restitution of marital rights is a discretionary and equitable relief.

The husband may file a lawsuit to regain his conjugal rights if his wife refuses to live with him without a valid reason, and vice versa. The wife also has the right to insist that the husband perform his marital duties. However, because the Muslim husband is the one in charge of marital matters and because the Quran commands the husband to treat his wife with kindness whether he decides to keep her or divorce her, the Court tends to side with the wife and requires strict proof of all the allegations that are required for matrimonial relief.

Grounds for refusal of Restitution of Conjugal Rights under Muslim Law

The Dissolution of Muslim Marriage Act, 1939’s other clauses as well as the grounds of invalid and illegitimate marriages may be used to oppose a petition for the restoration of conjugal rights. According to Section 2(vii) of the Dissolution of Muslim Marriage Act, 1939, when the marriage has been avoided by exercising the choice of puberty, the lawsuit for the restitution of conjugal rights fails.

In light of the fact that Muslim law permits controlled polygamy, the Muslim wife cannot refuse her husband’s comfort because he has taken a second wife. However, in some circumstances, the husband’s second wife may have been treated cruelly, which would then be grounds for her reluctance to live with him.

Restitution of marital rights can be sought even by the husband. However, for the following reasons the court may refuse to issue restitution of conjugal rights order to the couple:

  • If there exists any performance of cruelty by the husband and the in-laws
  • If the husband refuses to fulfill his marital obligations
  • Due to the husband’s failure to pay his dower on time

According to Section 2 (viii) of the Dissolution of Muslim Marriage Act, 1939, the term “cruelty” incorporates not only physical cruelty but also legal cruelty and other forms of cruelty. The relief of recovery of conjugal rights to the husband may be refused by the Court if any of those cases of cruelty as specified in this particular clause are proven to be against him.

In the case of Itwari v Asghari,

where a Muslim husband filed a restitution petition against his first wife, the Allahabad High Court on 29 August 1959 held that it cannot force the wife to live with the husband and can refuse the relief if the court feels that it would not be reasonable and just to do or that passing the decree would be inequitable. Some High Courts have denied the relief of restitution of conjugal rights on the ground of considering the above as cruelty by the husband towards the wife

Restitution of Conjugal rights under Christian Law

The remedy of recovery of marital rights is available to Christians under Sections 32 and 33 of the Indian Divorce Act, 1869.

According to Section 32 of the Indian Divorce Act, 1869, if either the husband or the wife withdraws themselves from the other’s social circle without a valid reason, the petition for restitution of conjugal rights may be brought before the District Court or the High Court. As a result, the Court may order the restitution of conjugal rights after concluding that the claims presented in the petition are true and that there is no valid reason why the request should be denied.

According to Section 33 of the Indian Divorce Act, 1869, nothing that would not be a basis for a judgement of nullity of marriage or a lawsuit for judicial separation may be raised as a defence against a request for the restitution of conjugal rights.

Grounds for refusal of Restitution of Conjugal Rights under Christian Law

An order of restitution of conjugal rights can also be requested by a Christian husband and wife. For the following grounds, the Court would be unable to issue the decree:

  • If there is the cruelty of wife or husband.
  • If one or both of the spouses are insane.
  • If either of the spouses remarries.

Conjugal Rights Restitution under the 1954 Special Marriage Act

Interfaith marriages and court marriages are governed by the Special Marriage Act. According to Section 22 of the Special Marriage Act of 1954, the party who has been wronged may petition the district court for Restitution of Conjugal Rights if either the husband or the wife has isolated themselves from the other without a good reason.

The Court will issue a judgement for Restitution of Conjugal Rights if it is convinced that the allegations mentioned in the Petition are true and is given the assurance that there is no reason legally for the application to be dismissed.


Constitutional Validity

There have been a number of claims that the restitution of conjugal rights violates the rights given by the Indian Constitution and is therefore illegal. It is argued that the restoration of conjugal rights breaches other constitutional rights, such as the right to freedom (Article 19) and the right to privacy (Article 21).


In numerous cases throughout the years, courts have had to decide whether a person’s autonomy over their own body is covered by the right to privacy. The issue has generated conflicting opinions from the courts. The Supreme Court stated in the case of Gobind v. State of Madhya Pradesh in 1975 that although the right to privacy can be extended to personal intimacies of home and marriage, it is a private space of the individual and law should not interfere with the same. This is one of the. earliest instances where such question was discussed by a court.

However, the Andhra Pradesh High Court issued a relatively progressive ruling in the matter of T. Sareetha v. T. Venkatasubbaiah, where the Court found that Section 9 seriously violated the privacy rights of spouses. This ruling was a step toward rectifying this feudal law that violated people’s fundamental rights under the pretence of protecting marriage ties. In the matter of Harvinder Kaur v. Harmander Singh Chaudhary, the Delhi High Court took a different approach. The Supreme Court’s decision in the case of Gobind v. State of Madhya Pradesh was upheld by the Court in this instance. The Court maintained Section 9 as a clause protecting the sacredness of marriage.

Although the judge correctly identified the underlying purpose of Section 9, it was mistaken when they claimed that this clause had no bearing on an individual’s right to privacy. Enforcing cohabitation on a spouse puts them and their fundamental rights in severe danger in a nation where marital rape is still not recognized as a crime. Although the Court was right to say that the aforementioned rule does not need sexual interactions, the lack of law to ban marital rape presents a gap that could be exploited by getting a decision of restitution of conjugal rights. The landmark K.S. Puttaswamy v. Union of India decision clearly established that a person’s right to privacy includes their ability to control their own body. Therefore, putting a person at risk of losing their autonomy over their own body—a freedom essential to the fundamental right to live with dignity protected by Article 21 of the Constitution—is incredibly unfair. Therefore, it can be fairly inferred that the reinstatement of marital rights infringes upon an individual’s personal liberty and fundamental rights.


The Ojaswa Pathak v. Union of India case represents a significant development in the area of restitution of conjugal rights.   The petitioners in this case brought up an important concern regarding the impact of this clause on the constitutionally protected rights to equality, sexual and reproductive health, and autonomy. The petitioners sought a socio-legal interpretation of the rules in order to determine their validity. They specifically disputed Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908, Section 22 of the Special Marriage Act, 1954, and Section 9 of the Hindu Marriage Act.

Although the legal provision permits both men and women equally to seek restitution of conjugal rights, it was stated that. Although these regulations are gender-neutral, women are nevertheless disproportionately affected by them. This is a result of the Indian social structure, which has developed to benefit men.As a result, if the woman is compelled against her choice to live in her husband’s home with his family, it not only places her in an unfair situation but could also be destructive to her well-being. As the Supreme Court correctly stated in the case of Shakila Banu v. Gulam Mustafa, this idea originated in the past, when women were viewed as simply chattel or as property, and slavery or quasi-slavery was not regarded as being against the law. It is therefore a mediaeval English rule that has no place in a constitutional framework that guarantees men and women’s equality of status and allows the state to make specific provisions for defending these rights. As a result, these provisions providing for restitution of conjugal rights are violation of Articles 14, and 15(1) of the Constitution.

From a socio-legal standpoint, women’s status in contemporary society cannot be disregarded because they continue to be viewed as being in an inferior position than men, both socially and financially. Due to the rules and remedies that are in place, it is permissible for men to take advantage of a woman’s financial dependency, ignorance, or any other factor. As seen frequently in such forced cohabitation, this type of arrangement causes unwanted pregnancies, sexual exploitation, and physical and mental abuse of the woman by her husband and his family. As a result, the remedy of restitution of conjugal rights is incompatible with the right to equality, which comprises equality of thoughts, deeds, and self-realization.

In the beginning, the Court determined that Section 9 of the Hindu Marriage Act was unconstitutional since it was obviously stealing the wife’s privacy by forcing her to remain with her husband against her will. However, in a later historic decision, it was determined that Section 9 was entirely lawful and that the primary goal of the restoration of conjugal rights was to prevent the separation of the husband and wife without any justifiable grounds.

Procedure for Restitution of Conjugal Rights

The procedure for Restitution of Conjugal Rights has been stated below:

  1. Consult a Lawyer- The first step that you should do is to hire a good family lawyer. A lawyer will be able to guide you in your case, after understanding the facts and circumstances of your particular matter. He/She will be able to guide you on whether filing a Petition for Restitution of Conjugal Rights is a viable option or not.
  2. File the Petition- Once it is decided to go for Restitution of Conjugal Rights, the aggrieved party can file a Restitution of Conjugal Rights Petition in the District Court or a Court of proper jurisdiction. The lawyer will draft your petition after understanding your matter. The petition can even be transferred by an Application in the High Court or the Supreme Court, as the case may be.
  3. Copy of Petition to Partner- A copy of the Petition is to be sent to the Respondent i.e. the spouse, after a hearing from the District Court.
  4. Presence before Court- On the next hearing, the Court will require both parties to be present in front of the Hon’ble Judge. If both the parties are not available, another date may be given upon which the Parties will have to show up.
  5. Counseling- After hearing the counsels, the court may send both husband and wife for counseling. It is usually done by family courts and the couple is required to be present 3-4 times. The process of counseling could take 3 or 4 months.
  6. Decree- Based on the proceedings in court, the counseling, and after hearing both the parties and keeping in mind the conduct of the married couple, the Court finally grants the decree. In the decree, the Court may or may not order the Restitution of Conjugal Rights.


Where should a Restitution of Conjugal Rights Petition be filed?

A petition for Restitution of Conjugal Rights is to be filed in a district court (Civil Court) or a Court of

proper jurisdiction, which is decided on the basis of the following:

  • In the Civil Court in whose jurisdiction the parties’ marriage was performed.
  • In the Civil Court in whose jurisdiction the husband and wife stay together.
  • In the Civil Court in whose jurisdiction the husband and wife last stayed together.

Things you need to Collect / Documents Required for Restitution of Conjugal Rights

The documents required and to be collected for the filing of the Petition are given below:

  1. Address proof of the Petitioner
  2. Identity Proof of the Petitioner
  3. Proof of marriage
  4. Photograph of the Petitioner
  5. Birth Certificate of the Children (if need be)
  6. Any evidence calls/messages ages supporting that the partner left or withdrew from the society without reasonable excuse
  7. Any evidence – calls/ messages stating that the spouse/partner left due to cruelty or because of some reasonable excuse.

Landmark Judgments/Cases regarding Restitution of Conjugal Rights

1. Moonshee Buzloor v. Shumsoonissa Begum

1866, II M.I.A. 551 P.C

The concept of Restitution of Conjugal Rights was introduced in India in the case of Moonshee Buzloor v. Shumsoonissa Begumwhere such actions were regarded as considerations for specific performance.

FACTS:The husband disposed of the property of his wife and misbehaved with her. She was compelled to withdraw from the society of her husband. The husband sought the recovery of his wife under the Specific Relief Act. The wife contended that neither the Islamic laws nor the principles of justice permitted the custody of his wife. In the appeal, the husband claimed that under Islamic law a wife did not have the right to live separately even if the husband misbehaved.

HELD:When a wife without lawful reasons ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights. It was clarified that the suits for restitution have to be carried out under the Muslim law and the equity and good conscience were used only to supplement the Muslim law where texts were not available.

2. Tirath Kaur v. Kirpal Singh

1964 Punj 28

FACTS:At the instance of the husband, the wife took up training and succeeded in obtaining a diploma in tailoring. Thereafter she got a job at a place that was at long distance from her husband’s house. The parties cohabited: sometimes the husband went to the wife’s place and lived with her and vice versa. This continued for some time.

Later differences arose between them on some matters, and the husband asked the wife to resign from the job and join him at his house. On the wife’s refusal to do so, the husband filed the petition for restitution.

HELD:The High Court held that the refusal by one spouse to give up his/her job and live with the other leads to withdrawing from the society of the other. The Hon’ble Court said that the husband was justified in asking the wife to live with him even if she had to give up service but as she was not prepared’ to do so on any condition whatsoever and the Conjugal, duties could not be performed by living at such a distance, the husband was entitled to the restitution claim.

Further, the High Court held that the wife’s first duty is to submit herself to the husband and remain under his roof and protection. Justice Grover said that “under law, the wife could be allowed to withdraw ‘virtually’ from the society of the husband in this manner”.

This judgment given by the Punjab High Court attracted a lot of criticism on the restitution of conjugal rights’ constitutional validity.

3.Sushila Bai v. Prem Narayan

AIR 1964 MP 225

Wife-appellant filed an application under Section 9 of the Hindu Marriage Act in the Court of the District Judge, Gwalior, and prayed for a decree for restitution of conjugal rights. The facts disclosed in this application were that she was married to the respondent on 28th June 1972 and after marriage, both lived together. During this period, she was mistreated and assaulted by the respondent, and ultimately, on 1st May 1977, the respondent abandoned her in her parental home with the instructions not to send her to him, unless called for. Several letters were sent by her parents to the respondent, requesting to take the appellant back, but the requests remained unanswered.

Respondent, in his reply, admitted the factum of marriage, but repudiated the allegations of cruelty. He also denied that he has abandoned the wife and left her in the residence of his in-laws. Respondent pleaded desertion on the part of his wife.

Here, the Respondent-husband virtually dumped his wife and thereafter was totally unresponsive towards her. This behavior was held sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed.

During the time of introducing of the provision for restitution of conjugal rights in the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in Parliament for and against it.

4.Shakila Banu v. Gulam Mustafa

AIR 1971 Bom 166

The Hon’ble High Court observed: “The concept of restitution of conjugal rights is a relic of ancient times when slavery or quasi slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”

5.T. Sareetha v. Venkatasubbaiah

AIR 1983 AP 356

The question of the constitutional validity of S.9 for the first time came up in came up in the case of T Sareeta v Venkatasubbiah.

FACTS:Sareetha, a well-known actress of the South Indian film industry was alleged to have been given in marriage to Venkata Subbaiah at Tirupathi on December 13th, 1975. Immediately thereafter, they were separated from each other and have been living apart from each other for more than five years. Venkata Subbaiah filed for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 at the sub-court, Cuddapah. It was the contention of Sareetha that the Sub-Court, Cuddapah had no jurisdiction over the matter, as the marriage took place at Tirupathi and the couple last resided together at Madras. It was Venkata’s contention that the couple lived together in Cuddapah for six months and thereafter went to Madras and lived there with Sareetha’s parents for some time.

Here the husband had himself asked the Court to pass a decree of restitution of conjugal rights and after completion of a year, he filed a petition for divorce on the ground that the decree has not been complied to. The Sub-Court overruled Sareetha’s preliminary objection, and Sareetha filed a Civil Revision Petition against the order of the Sub-Court. The wife challenged the constitutional validity of S.9 of the Act.

HELD:The Court held that the Subordinate Judge was right in holding that the parties lived at the house of Venkata at Cuddapah as Venkata Subbaiah had specifically pleaded this and Sareetha failed to specifically deny this averment. The Civil Revision Petition was allowed. Section 9 of the Hindu Marriage Act, 1955 was declared null and void.

Justice Chaudhary of the Andhra Pradesh High Court held S. 9 to be a “savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution, hence void”.

Chaudhary J. stated that section 9 imposes “sexual cohabitation between unwilling, opposite sexual partners.” He called it “forced sex”, “coerced sex” and “forcible marital intercourse”. He went on to hold that the state interference in personal rights destroyed the “sexual autonomy” and “reproductive autonomy” of the individual. A wife who is keeping away from her husband, because of a permanent or temporary arrangement, cannot be forced, without violating her right to privacy, to bear a child by her husband.

6.Harvinder Kaur v. Harmendar Singh

AIR 1983 Del 66

The decision of the Hon’ble High Court, in this case, was upheld by the Supreme Court in the case of Saroj Rani and this case effectively overruled the precedent set by J.Chaudhary in Sareetha.

FACTS:Harvinder Kaur who is the appellant was married to Harmandar Singh Choudhry who is the respondent. They were married on the 10th of October, 1976. They both were independent and had jobs of their own. They had a son who was born to them on the 14th of July, 1978. They both started living on their own and separately as the appellant left the house accusing the respondent that is her husband and his mother of malpractice and maltreatment. Due to these circumstances, the husband applied for a petition under Section 9  Hindu Marriage Act, 1955 which seeks and exemplifies the restitution of conjugal rights. The Additional District Judge ruled in favor of the husband and granted a decree of restitution of conjugal rights to him. The other party challenged the validity and significance of the constitutionality of the section 9 of the Hindu Marriage Act. The wife also raised an objection pertaining to the jurisdiction of the court.

HELD:The constitutionality of Section 9 was upheld and the judgment in Sareetha overruled. The court justified the alleged violations of the ‘Equality Protection’ and the ‘Right to Life and Liberty’ by giving a more wholesome definition to the aspect of ‘Restitution of Conjugal Rights’. The purpose of restitution of conjugal rights was emphasized as providing impetus to the undo any damage done to their marriage to couples who’ve withdrawn from the societies of each other. The concept of marriage was emphasized to include the ideas of both ‘contract’ and ‘sacrament’ and therefore, it was argued that such special obligations demanded that the institution of marriage should not be easily amenable to break down. Sexual intercourse was not the whole constitution of marriage and was only one of the elements.

Section 9 of the Hindu Marriage Act, 1955, does not violate Article 14 and Article 21 of the Indian Constitution since the main reason behind the foundation of Section 9 was to preserve marriage. The remedy of restitution of conjugal rights does not merely aim on sexual intercourse between married couples, but on cohabitation and consortium to exist between them.

7.Saroj Rani v. Sudharshan Kumar Chadha

AIR 1984 SC 1562

Supreme Court in Saroj Rani v. Sudharshan gave a judgment that upheld the constitutional validity of Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah

FACTS:The wife-appellant filed a suit against the husband-respondent under Section 9 of the Hindu Marriage Act 1955, for restitution of conjugal rights. Though he respondent contested the petition contending that he had neither turned the appellant t from his house nor withdrawn from her society later as he made a statement in the Court that the application under Section 9 be granted; a consent decree was passed by the Sub-Judge for the restitution of conjugal rights between the parties.

After a lapse of a year, the respondent-husband filed a petition under Section 13 of the Act against the appellant for divorce on the ground that though one year had lapsed from the date of passing the decree for restitution of conjugal rights no actual co-habitation had taken place between the parties.

The District Judge after considering the evidence of the civil and criminal proceedings pending between the parties came to the conclusion that there had been no resumption of cohabitation between the parties. It was held that as the decree for restitution of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce.

The respondent filed an appeal. A Single Judge of the High Court held that it could not be said that the husband was taking advantage of his ‘wrongs’, but however expressed the view that the decree for restitution of conjugal rights could not be passed with the consent of the parties and therefore being a collusive one dis entitled of  husband a decree for divorce, and referred the matter to the Chief Justice for constitution of a Division Bench for consideration of the question.

The Division Bench held that a consent decree could not be termed to be a collusive, decree so as to dis entitle the petitioner to a decree for restitution of conjugal rights. The appeal was allowed, and the husband granted a decree of divorce.

The wife appealed before the Hon’ble Supreme Court of India.


1. In India conjugal rights .e. right of the husband or the wife o the society of the other spouse is not merely a creature of the statute. Such a right is inherent in the institution of marriage itself. There are sufficient safeguards in Section 9 of the Hindu Marriage Act to prevent it from being a tyranny.

2. Section 9 is only a codification of pre-existing law. Rule 32 of Order 21of the  Code of Civil Procedure deals with a decree for specific performance for restitution of conjugal rights or for an injunction.

3. Section 9 of the Act is not violation of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and the method of execution in cases of disobedience is kept in view.

4. It is significant hat unlike a decree of specific performance of contract; a decree for restitution of conjugal rights, where the disobedience to such a decree is willful i.e. is deliberate, might be enforced by attachment of property. Where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only the properties have to be attached, is provided for. This is so to enable the Court in appropriate cases when the Court has decreed restitution for conjugal rights to offer an inducement for the husband or wife to live together and to settle the matte amicably. It serves a social purpose, as n aid to the prevention of break-up of marriage.

5. (i) Even after the final decree of divorce the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage.Separate maintenance should be paid for the wife and the living daughter. Wife would be entitled to such maintenance only until she remarries and the daughter to her maintenance until she is married.

Thus the Court granted the divorce but at the same time understanding the situation of the wife and daughters, ordered the husband to pay prescribed maintenance to the wife until she remarries. The Hon’ble Court has thus considered the interests of both parties and maintained harmony in this area.

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