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Legal provisions and Constitutional validity of the Restitution of Conjugal Rights

Updated: Dec 1, 2020

By K.M.Barathkumar, III year B.B.A., LL.B. (Hons.), SASTRA University


Marriage is considered as a sacramental. The sacramental of marriage is a lasting commitment of a man and a woman to a lifelong partnership, established for the good of each other and the procreation of their children. If anyone of the spouses leaves the other without any reasonable cause, then the other spouse can claim the restitution of conjugal rights. If there is a reasonable cause the court cannot decree the restitution of conjugal rights but if there is no reasonable cause the court will grant a decree for the restitution of conjugal rights. Restitution means the ‘restoration of some lost’ and conjugal rights means ‘the marriage relationship between husband and wife’.


Defence for restitution of conjugal rights

1. The petitioner has treated the other party with cruelty.

2. The petitioner has converted to other religions.

3. The petitioner has been suffering an incurable form of leprosy.

4. The petitioner has been of an unsound mind.

5. The petitioner has been suffering from venereal disease.

6. The petitioner has entered a religious order.

These conditions are considered as reasonable causes. In these conditions, the court is not supposed to grant the restitution of conjugal rights.


Laws govern the Restitution of Conjugal Rights

1. Sec. 9 of the Hindu Marriage Act

2. Sec. 32 and 33 of the Indian Divorce Act

3. Sec. 36 of the Parsi Marriage and Divorce Act

4. Sec. 22 of the Special Marriage Act

Sushila Bai vs. Prem Narayan[i], in this case, the court listed out the conditions to be satisfied for filing the petition of the restitution of conjugal rights. The conditions are as follows:

1. The petitioner should prove that the respondent spouse has been withdrawn from his/her society without any reasonable excuse.

2. The statement made by the petitioner should be true

3. The court satisfied that there is no legal ground why the application should not be granted.

The only defence for the restitution of conjugal rights is a ‘reasonable excuse’. If the respondent spouse has withdrawn from the society of the petitioner spouse then it is a complete defence for the restitution of conjugal rights.


Constitutional validity

Sareetha vs. T.Venkatasubbaiah[ii], in this case, the petitioner Sareetha was an actress and she was busy in her shooting. Hence, she stayed separate from her husband for five years. Her husband filed a petition for the restitution of conjugal rights. So, Sareetha filed a case in the Andhra Pradesh High Court by claiming that the sec. 9 of the Hindu Marriage Act is unconstitutional because sec. 9 of the Hindu Marriage Act violates Article14 and Article 21 of the Constitution. The Andhra Pradesh High Court held that ‘the right to privacy belongs to an individual and is not lost by marital association’. Further, the court observed that compelling a woman to have sex with her spouse violates the right to privacy. Hence the Andhra Pradesh High Court held that the sec. 9 of the Hindu Marriage Act violates Article 14 and Article 21 of the Constitution and therefore it was held as void.

In Saroj Rani vs. Sudarshan Kumar Chadha[iii], the Hon’ble Supreme Court overruled the Andhra Pradesh High Court’s judgment in Sareetha vs. T.Venkatasubbaiah. Saraoj Rani vs. Sudarshan Kumar Chadha, in this case, the Hon’ble Supreme Court held that the restitution of conjugal rights aims to prevent the break up between the spouses. The reasonable excuse for the separation of the spouse is a clear defence for the restitution of conjugal rights. The Restitution of Conjugal Rights is granted only when there are no reasonable causes for the separation of a spouse. Hence, the sec. 9 of the Hindu Marriage Act doesn’t violate Article 14 and Article 21 of the Constitution and therefore it is not void.


Even though many criticisms are evolved against the restitution of conjugal rights, that the restitution of conjugal rights violates Article 14 and Article 21 of the Constitution, there is no clear evidence that the restitution of conjugal rights is barbarous and violates fundamental rights. The main purpose of the restitution of conjugal rights is to maintain a good relationship between the spouses. Hence, in our point of view, the restitution of conjugal rights serves as an aid to prevent the break up between the spouses.

[i] Sushila Bai vs. Prem Narayan, AIR 1986 MP 225 [ii] Sareetha vs. T.Venkatasubbaiah, AIR 1983 AP 356 [iii] Saroj Rani vs. Sudarshan Kumar Chadha, AIR 1984 SC 1562

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