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Restitution of Conjugal Rights in Hindu Marriage Act

November 06, 2018
By Advocate Chikirsha Mohanty



Restitution of Conjugal Rights in Hindu Marriage Act

The Hindu Marriage Act, 1955 provides a remedy under Section 9 in the form of restitution of conjugal rights if someone’s spouse has left without giving any reasonable grounds. Section 9 of the HMA reads that when either the husband or the wife has, without a reasonable excuse, withdrawn from the society of the other, the distressed party may apply for restitution of conjugal rights.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.

 

Three essential conditions for Section 9 of HMA

Firstly, one party must have withdrawn from the society of the other; secondly, the withdrawal must be without any reasonable reason, and thirdly, the aggrieved party applies for the restitution of conjugal rights.

Once these conditions are fulfilled, the district court may decree of restitution of conjugal rights to bring about cohabitation between the estranged parties.

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.

 

Reasonable grounds on which petition for Restitution of Conjugal Rights can be rejected:

First, if the respondent has a ground on which he or she can claim any matrimonial relief;

Second, if the petitioner is guilty of any matrimonial misconduct;

Third, if the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him; for instance, husband’s neglect of his wife or the constant demand for dowry, etc. are some reasonable ground for the wife not to join the company of her husband.

 

The burden of proof under Section 9 of the HMA

The burden of proof is on the aggrieved/petitioner who needs to prove that the respondent has withdrawn from his society. Once that burden is discharged by the petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the withdrawal.



 

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