Restitution of Conjugal Rights in Hindu Marriage Act

Restitution of Conjugal Rights in Hindu Marriage Act

Conjugal rights are the sexual rights and privileges implied by and involved in a marital relationship. The Hindu Marriage Act, 1955 (HMA) gives a remedy under Section 9 for restitution of conjugal rights if a person's spouse has left without giving any reasonable grounds, i.e. when either the husband or the spouse has, without a reasonable excuse, withdrawn from the society of other, the aggrieved party may apply for restitution of conjugal rights.

The party in distress can file a petition to the respective district court after which the court records the statements of both parties made in the petitions and if the court finds no legal ground as to why the application should not be granted, the judge may decree restitution of conjugal rights in the aggrieved's favor.

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Three essential conditions for Section 9 of HMA

First, one party has to have left the company of the other in a way that can be called as withdrawn from the society as other. Second, it must not be for any reasonable explanation. Third, the aggrieved person must apply for the restoration of conjugal rights.

The district court can order the restitution or conjugal rights if these conditions are met. This will allow the estranged couple to cohabit.

If the court is not convinced and finds the petitioner guilty then the decree of restitution of conjugal rights is not granted.

If the parties are not following the decree for cohabitation after the passing of the decree, continuously for about a year, it becomes a ground for divorce under Section 13 .

How to get your spouse to live with you again?

If your spouse has-

• deserted or abandoned you willingly, or

• lives separately without any reasonable excuse, or

• denies you his/her company, or

• does not stay with you for a reasonable amount of time,

You may file for Restitution of Conjugal Rights at the district family court and if the court is satisfied, it may order your spouse to stay with you. And if your spouse does not follow the court orders of staying with you, it can attach and sell your spouse's property under Order 21 Rule 32 of the Civil Procedure Code (CPC).

Restitution of Conjugal Rights for different religions:

If the religion of the couple is-

• Hindu - Section 9 of the Hindu Marriage Act, 1955

• Muslim - Section 32 of the Indian Divorce Act, 1869

• Christianity - Section 33 of the Indian Divorce Act, 1869

• Parsi - Section 36 of the Paris Marriage and Divorce Act, 1936

If the couple comprises of different religions, it shall fall under section 22 of the Special Marriage Act.

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You will not be granted Restitution of Conjugal Rights if-

• If your spouse has a reasonable ground for abandoning you like-

• Completing studies or

• Due to transfer in service

• If your spouse has a ground for divorce

• If you are guilty of any matrimonial misconduct

• If you are guilty of any conduct which makes it impossible for your spouse to live with you. For e.g. - You neglect your wife or You constantly demand dowry.

The burden of proof is on the spouse who is filing for the restitution. After you have proved your part, your spouse gets a chance to present any reasonable cause for separation.

How to file for Restitution of Conjugal Rights?

• File a petition of restitution of conjugal rights at the district family court where you and your spouse were residing after marriage.

• Send a copy of the petition to your spouse with a hearing date, fixed by the court.

• Both you and your spouse must be present in the court on the date of hearing as decided by the court otherwise, the Court can pass an ex parte decree (order passed against the spouse who is absent).

• The court often sends the spouses for court counseling which approximately takes a time of 4 months.

Further, the judge listens to both sides and takes considerations from your counseling sessions, and after being satisfied grants restitution for conjugal rights to the spouses.
 

What can a Lawyer do for you?

Divorce can be stressful for all parties involved. Hiring an experienced divorce lawyer is a good way to ease the tension. The lawyer will not only gather information about the case from you, but will also handle all of the paperwork. This will give you more time to spend with your family and yourself. A divorce lawyer with years of experience can provide you with expert advice about how to deal your divorce. You can also use LawRato's  Free Legal Advice  service that allows you to receive free legal advice from divorce/matrimonial experts. Divorce lawyers are experts in the law and can help avoid costly mistakes. Hiring an attorney will help a person avoid delays.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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