9. Restitution of conjugal rights.-
1[***] When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.
2[ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
If a consent decree for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955, is passed, it will not be a nullity. If it is not challenged in appeal or by way of other remedy available under the law and becomes final, it cannot be ignored and can form the basis of divorce proceedings under section 13(1A) of the Hindu Marriage Act, 1955; Saroj Rani v. Sudarshan Kumar , AIR 1984 SC 1562.
Where it is found that conduct of husband created reasonable apprehension in mind of wife that it would be unsafe for her not to stay with husband, the decree for restitution of conjugal rights in favour of husband cannot be granted; Kamaladevi v. Shiva Kumar Swamy, AIR 2003 Kar 36.
For obtaining a divorce on failure of getting restitution of conjugal rights even after a decree a spouse has to wait for one year. Thus the restitution decree and the second petition for divorce might be a slightly more expeditious way for getting relief; Karabi Das v. Paritosh Das , AIR 2003 Cal 61.
Restitution of conjugal rights
In a petition for restitution of Conjugal Rights, alternative relief of divorce cannot be claimed. These prayers are mutually destructive of each other and, therefore, cannot be made together; Baldev Raj v. Bimla Sharma , AIR 2006 HP 33.
Any law which would give an exclusive right to the husband to decide upon the place of the matrimonial home without considering the merits of the claim of the wife would be contrary to Article 14 and unconstitutional for that reason; Swaraj Garg v. K.M. Garg , AIR 1978 Del 296.
Withdrawal without reasonable excuse or just cause
Wife is under an obligation to live with her husband in his home and under his roof except in case of distinct and specific misconduct on the part of the husband. The marital obligation has been further buttressed by clear statutory recognition by section 9 of the Hindu Marriage Act; Kailash Wati v. Ayodhia Parkash , 1977 (79) PLR 175.
1. The brackets and figure “(1)” omitted by Act 68 of 1976, sec. 3(a) (w.e.f. 27-5-1976).
2. Ins. by Act 68 of 1976, sec. 3(a) (w.e.f. 27-5-1976)
3. Sub-section (2) omitted by Act 68 of 1976, sec. 3(b) (w.e.f. 27-5-1976).