Restitution of Conjugal Rights is a right to live together. When either of the husband or a wife without any reasonable ground denies to cohabit with the other spouse and live together, aggrieved party can file petition in court for Restitution of Conjugal Rights. A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. A husband or wife can file a petition for restoration of their rights to cohabit with the other spouse.
Section 9 of Hindu Marriage Act, 1955 deals with the provision of Restitution of Conjugal Rights which provides as, When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.
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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
Case Laws-
1. Smt. Sushila Bai vs Prem Narayan Rai, AIR 1986 MP 225
On 9-10-1978, wife-appellant filed an application under Section 9 of the Hindu Marriage Act thereinafter referred to as the 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 are 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 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.
On perusal of the entire evidence on record, it is evident that the difference between the wife and the husband is only on one issue and that is the wife wants to live with her husband at Bhopal, where he is in Government service, while the husband wants to keep his wife only at Bina, where his father, mother and sisters reside. The appellant-wife like any other wife, is desirous of living in the constant company of her husband, seeking the nuptial-bed and conjugal bliss. But, the husband has expressed his inability to keep his wife with him at Bhopal on the ground of lack of space and funds.
The court held that, In order to sustain a petition for restitution of conjugal rights, it is necessary to establish that the respondent has withdrawn from the society of the petitioner. The society means conjugal society. Thus, the onus is on the petitioner who can succeed only on the strength of his own case and not on the weakness of the defense set up. The Explanation added to Section 9 by the amending Act of 1976, has merely provided for a rule of evidence by laying down the burden of proof in regard to a question whether there has been a reasonable excuse for withdrawal from the society of the petitioning spouse on the party pleading excuse. This burden of proof is very light since the spouses are always supposed to live together and if he or she lives separately, it is for that person to prove the conditions which have necessitated such a course to be taken Thereafter, that burden would shift to the other party to show that he or she has withdrawn from the society of the other for a reasonable excuse. Therefore, the Court passed a decree of restitution of conjugal rights under Section 9 of the Act be in favor of the wife/appellant.
2. Mahesh Kumar vs Smt. Anju, RLW 2007 (1) Raj 410
This appeal is against the judgment and decree passed by the Court of Addl. District Judge No. 1, Bikaner in Divorce Petition No. 44/99, dated 30.3.1999 by which the trial Court dismissed the appellant-applicant's divorce petition filed on the ground of desertion by the wife.
Brief facts of the case are that the marriage of the appellant and respondent was solemnized on 29.11.1993. The appellant's case is that the respondent lived in the house of the appellant till December, 1995 and since thereafter she is residing with her parents at Jaipur. The husband is resident of Bikaner. Before filing present divorce petition on the ground of desertion, the appellant submitted a petition under Section 9 of the Hindu Marriage Act, 1955 on 11.3.1997. In the said case, the non-applicant gave her statement on 16.4.1998. In the said statement, non-applicant respondent wife admitted that since 19.11.1995 she is residing with her parents at Jaipur and she is not willing to live with the husband on any condition. In the same line, the father of the respondent-wife also gave statement in the Court. According to the appellant-applicant husband, in view of the said statements, the appellant withdrawn his petition filed under Section 9 of the Hindu Marriage Act on 24.4.1998 and it appears from the record that on the same day, i.e. 24.4.1998 itself, the applicant submitted this divorce petition.
The non-applicant submitted reply to the divorce petition denying all the allegations and thereafter submitted that just after sometime of the marriage, the applicant-appellant's mother and father started demanding dowry and abusing the non applicant's family members. However, the non-applicant tried to live in the house and tolerated torture of the applicant and his mother and father. It is stated that the non-applicant's mother and father arranged several meetings for reconciliation between the applicant and the non-applicant with the help of persons (Panchayati) but the applicant's mother and father were adamant for the dowry. It is stated that non-applicant's parents had no means to fulfill the demands of the applicant and his family members and ultimately, the non-applicant was turned out in one dress by the applicant and his family members on 19.12.1995. Since then she is residing at Jaipur with her parents.
The respondent further failed to explained why she never complained about any alleged cruelty even when the applicant filed the petition for restitution of conjugal rights.
In view of the above, it is proved fact that the non-applicant left the applicant on 19.12.1995 without any reasonable cause and the finding of the Court below that there was demand of dowry by the appellant and his family members is without there being any evidence on record and because of the misreading of the letter dated 24.12.1994.
In view of the above, the appeal of the appellant deserves to be allowed and hence allowed and the judgment and decree passed by the trial Court dated 30.3.1999 is set aside. The divorce petition filed by the applicant-appellant is allowed. The marriage of the applicant-appellant stands dissolved.