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Explained: Restitution of Conjugal Rights in India

Explained: Restitution of Conjugal Rights in India

Marriage as an institution is essential to the development of society.  Family is formed by marriage, hence it is equally true to say that marriage is a subset of family. Due to the accelerated pace of life in our day, many disputes arise within marriages. These factors collectively have led to the discord among married couples.

What are conjugal rights? 

Sharing a marital life means having the companionship of the person you are married to. It is not uncommon in a lot of cases for one of the spouses to withdraw said companionship without any explanation and justification. Section 9 of the Hindu Marriage Act provides a legal entitlement where the aggrieved spouse can apply to the district court to regain the companionship of their partner who has abandoned the relationship. This is called the restitution of conjugal rights.

A consent decree for the restoration of conjugal rights may be given, and it won't be null and void, according to Section 9 of the Hindu Marriage Act of 1955. If it is not challenged through an appeal or another legal means, at which time it becomes conclusive. Such a command cannot be ignored, but if it is, the Hindu Law Marriage Act of 1955 allows for its use as a ground for divorce under Section 13 (1A). If the lawsuit for restitution of conjugal rights is successful and one spouse is found guilty of separating without a good or sufficient reason, then the pair must remain together.

As a result, it can likewise be assumed that section 9 is the marriage-saving provision. In the case of Moonshee Bazloor v. Shamsoonaissa Begum 1866-67 (11) MIA 511, the privy council first used this remedy in India after having previously used it in England. However, in England, this matrimonial remedy—restitution of conjugal rights—was abolished in 1970. The requirements for the fulfillment of Section 9 are as follows: 

  1. Spouses should not be residing together. 

  2. There must be no reasonable ground for the party to withdraw from the marriage. 

  3. Application for restitution of conjugal rights is a prerequisite. 

Scope of Restitution of Conjugal Rights

The remedy of restitution of conjugal rights is accessible in India to people even beyond the scope of Hindu Marriage Act. It applies to: 

  1. Muslims under ordinary law. 

  2. Hindus, according to Section 9 of the Hindu Marriage Act.

  3. Those who are are considered under Section 36 of the Parsi Marriage and Divorce Act, 1936.

  4. Under the Indian Divorce Act, 1896, Section 32 - 33, to Christians.

  5. To those who fall under Section 22 of the Special Marriage Act.

On what grounds can an Order for Restitution of Conjugal Rights be passed?

The following are the grounds that are sufficient for the court to grant the restitution of conjugal rights order:

  1. The petition will be granted if the petitioner can persuade the judge that the respondent (spouse) withdrew from society without presenting a legitimate reason.

  2. The court found no legal reasons why the aggrieved spouse shouldn't be given the restoration of conjugal rights because the petitioner's (the aggrieved spouse's) allegations in the petition are valid.

The court may refuse to reinstate marital rights for the following legal reasons:

  1. Any grounds the respondent may have used to get a court separation order, a divorce, or a declaration that the marriage is null and void.

  2. Any actions taken by the petitioner or events that might suggest that the petitioner is abusing his or her rights or any inability to secure such relief; any other reasonable explanation for the petitioner's social isolation.

Constitutional Validity 

Right to Privacy

The Andhra Pradesh High Court issued a relatively progressive ruling in the matter of T. Sareetha v. T. Venkatasubbaiah, AIR 1983 AP356, where the Court found that Section 9 seriously violated the privacy rights of spouses. This ruling was a step toward rectifying this feudal law that violated people's fundamental rights under the pretence of protecting marriage ties. In the matter of Harvinder Kaur v. Harmander Singh Chaudhary AIR 1984 Delhi 66, the Delhi High Court took a different tack. The Supreme Court's decision in the case of Gobind v. State of Madhya Pradesh was upheld by the Court in this instance. The Court maintained Section 9 as a clause protecting the sacredness of marriage. It made a distinction between sexual connections and the idea of consortium or cohabitation as it applied to marriages. Furthermore, Section 9 only requires cohabitation between spouses; it does not mandate sexual interactions within a marriage. By ruling that courts lack the ability to uphold this basic right in an individual's private area, this judgement trimmed down the reach of the right to privacy. 

Although the judge correctly identified the underlying purpose of Section 9, she was mistaken when she claimed that this clause had no bearing on an individual's right to privacy. Enforcing cohabitation on a spouse puts them and their fundamental rights in severe danger in a nation where marital rape is still not recognised as a crime.

Although the Court was right to say that the aforementioned rule does not require sexual interactions, the lack of a law to ban marital rape presents a gap that could be exploited by getting a decision on restitution of conjugal rights. The landmark K.S. Puttaswamy v. Union of India decision clearly established that a person's right to privacy includes their ability to control their own body. Therefore, putting a person at risk of losing their autonomy over their own body—a freedom essential to the fundamental right to live with dignity protected by Article 21 of the Constitution—is incredibly unfair.

Article 14 and 21

The constitutionality of Section 9 of the HMA was contested in Smt. Saroj Rani vs. Sudarshan Kumar Chadha, 1984 AIR 1562, before the Hon'ble Supreme Court. The Honourable Supreme Court declared that a husband or wife's right to be with their spouse does not have legal standing in India. The institution of marriage includes the legal right to divorce. Section 9 of the Hindu Marriage Act contains enough protections to keep it from turning into a dictatorship. If the decree for the restoration of conjugal rights in the aforementioned Act is viewed in its proper context and the manner of execution in cases of disobedience is taken into consideration, it was also decided that Section 9 of the Act does not violate Article 14 or Article 21 of the Constitution. 

The Hon'ble Supreme Court received a new petition challenging the constitutionality of Section 9 of the HMA in Ojaswa Pathak and Anr. vs. Union of India, WP (C) 250/2019. This case is likely to be affected by the Hon'ble Supreme Court's decisions in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, and Joseph Shine v. Union of India, (2019) 3 SCC 39, where the Court ruled that certain laws were unconstitutional.

It is quite challenging to bring two people together when they are emotionally estranged from each other. Restitution of conjugal rights is one such matrimonial remedy because it will compel the spouse to save the union but cannot ensure its success. Additionally, some claim that it goes against the idea of natural law theory.

Desertion As A Ground For Divorce In India

Desertion As A Ground For Divorce In India

Marriage is viewed as a sacrament to protect it as a social institution. It was once thought that this unique contract could only be terminated when one of the couples committed a crime that devalued the significance of this institution.

Desertion is described as a "complete repudiation of the obligation of marriage" in Halsbury's Laws of India. In its literal sense, the word "desert" implies "to abandon, give up, or forsake without any good reason or intention to return." One partner is considered to be "at fault" in a marriage if he or she quits the union without good reason.

Desertion refers to the act of withdrawing from marriage obligations. It is a denial of the essence of any marriage partnership, which is living together. It is a complete breach of marital obligations. The following are the basic prerequisites for desertion – 

  • Factum of separation of one spouse from other.

  • Animus deserendi, i.e., intention to desert permanently.

  • The deserted spouse must not have agreed to the desertion.

  • The desertion must be without reasonable cause.

  • For at least two years, this situation must have continued.

It must be proven that the other party deserted the petitioner for a continuous period of at least two years immediately prior to the presentation of the petition without a valid reason or against the petitioner's wishes in order to achieve divorce on this ground.


However, before granting the divorce judgment on this basis, the court must be completely satisfied that the respondent had animus deserendi, or the intention to desert, and for that reason, the circumstances and the reason why desertion has occurred will be considered. The animus deserendi would not exist if there were a true cause.

Origin and Development of Desertion as a Ground for Divorce in India:

Divorce was not recognized under uncodified Hindu law unless it was permitted by custom. The rationale was that in Hinduism, a husband and wife's marriage was an unbreakable bond. However painful cohabitation could be, divorce was not permitted under the previous legal system.


The Hindu Marriage Act of 1955 (“the Act”) only recognized desertion as a ground for judicial separation. However, under Section 13(1)(i-b) of the Act of 1976, this is now a basis for both divorce and judicial separation. Desertion could be constructive or actual. The traits of cruelty may be present in constructive desertion. Real desertion involves leaving the marital residence, whereas constructive desertion involves leaving the marital union. The animus deserendi must go along with this abandonment of the married union. Constructive desertion is the exclusive fault of the neglectful spouse.

Termination of Desertion Based on Circumstances:

Desertion is a continuous offence. By doing something or acting in a certain way, the deserting spouse can stop the situation of desertion. These are some possible ways that it could end: Resumption of cohabitation, resumption of marital intercourse and supervening animus revertendi, or offer of reconciliation. 

In Gagandeep Gupta v. Dr. Sonika Gupta, AIR 2010 (NOC) 543 (P&H), on the grounds that his wife had deserted him, the husband filed for divorce. The parties did not cohabitate after their separation. Despite marital strife, the wife maintained her right to live in the marital home by claiming it as her own. Before the petition was presented, the wife had abandoned the husband for more than two years without a valid explanation. The judge decided that the husband would be eligible for a divorce decree.

In Bipin Chandra v. Prabhawati, AIR 1957 SC 173, the wife and her husband lived together in harmony. He spent a short while in England, and during that time, his wife grew close to an old friend of his. They wrote each other letters, which the wife's father-in-law received. She remained silent when her husband questioned her about it before leaving the following day for her parents' home. Later, her spouse sent the child a letter that was written to her. As a result of his refusal to allow his wife to return, he later filed for divorce on the grounds of desertion. The Supreme Court ruled that even though the wife left the marital home without a reason, she would not be considered to have deserted if she later indicated a desire to return but was forcibly stopped from doing so by the petitioner. In other words, there was no "animus deserendi" during the required term. When factum of separation and animus deserendi occur together, desertion becomes a crime. It's not required for them to start at the same time, though.

Burden and problem of proof

The Court has ruled that the petitioner has the burden of establishing desertion and all of its aspects because, typically, the weight of proof falls with the party who affirms a fact, not the person who disputes it. Since it is "so much easier to show a positive than a negative," this principle makes sense. 

However, the courts frequently deal with the issue of contradicting evidence, making it challenging to determine which of the two spouses' competing versions of the facts is true. This is particularly true given that these situations typically take place within the private confines of a home and that the lack of eyewitness testimony makes it difficult to establish the truth.

In conclusion, it may be concluded that while desertion may be seen as a fault-based basis for divorce, there are ways for the guilty spouse to get around the rules and thwart the justice of the deserted spouse. There are two potential answers to this issue: either establish new law that addresses these opportunities for abuse or move toward the idea of irretrievable breakdown of marriage so that the deserting spouse is not required to take use of the legal framework for desertion.

Divorce on Grounds of Adultery in India

Divorce on Grounds of Adultery in India

There are numerous grounds laid down in the Hindu Marriage Act (and other marital laws) that list adultery as a valid reason for divorce. The foundation of adultery-based divorce is the idea that marriage ensures that your spouse is on an equal footing with you. 

Legally, any spouse may petition a court for a divorce on the grounds that the respondent engaged in voluntary sexual activity with someone other than his or her husband after the marriage was solemnized. 

The individual making the accusation has the burden of proving adultery. Since sexual activity occurs in solitude or secret, it must be proven by circumstantial evidence that leads to the inevitable conclusion of adultery, even though direct proof is rare even with the development of all methods to catch it. The prudent man must pass the test. It is not necessary to show adultery beyond a reasonable doubt in a civil or divorce case because the evidence required is not as strong as in a criminal prosecution.

Also Read: How Can You Marry Your Foreign Soul Mate In India, Legally? 

Adultery as an offence in India

The following are the necessary elements for adultery to be committed:

  1. There should be sexual activity occurring outside of marriage, and this activity should be voluntarily.

  2. The extent to which circumstantial evidence can be deemed as proof of adultery has been disputed in a number of court rulings. As a result, the Odisha High Court ruled in the case of Banchanidde v. Kamladas that the circumstances had to be so strong that adultery was the only conclusion that could be drawn.

However, the Madras Court ruled in the case of Subbarma v. Saraswathi that it is possible to assume that adultery has taken place when a stranger is discovered with the wife after midnight. In the case of Maclenna v. Maclenna, the courts were forced to decide whether the use of an artificial insemination donor (AID) by the wife without the husband's consent might be considered adultery.

Also read:  Divorce Law in India

Proof of Adultery: 

Allegations of adultery must be explicitly stated along with the circumstances surrounding the alleged adultery. The petition must provide particular instances of the adultery, including the time, place, and parties involved. Additionally, the petition can be amended for cases that have already been filed. The following evidences, among others, can be used to show adultery:

Courts have upheld the claim of adultery in the following situations: (a) Wife had been missing from her home for a while and had been spotted with a stranger to her husband's family without a valid excuse or any other explanation.

(a) A stranger was discovered in actual physical proximity to the wife and alone in her bedroom after midnight.

(c) A child born more than a year after the spouses' marriage has ceased to be in consonance.

(d) Post-suit adultery evidence is admissible to support and clarify other evidence presented in the case as well as to demonstrate the nature and calibre of the prior deeds.

(e) Letters from an unlawful connection that were received from a paramour.

(f) The wife's written admission of infidelity.

(g) To establish adultery, disinterested witnesses must testify that they saw the respondent sharing a bed with a different individual on certain nights.

(h) Just one incidence of a wife engaging in consenting sexual activity with another person suffices.

 Also Read:  About The Polygamy Law Among The Muslims In India

The court has rejected the claim of adultery in the following instances.

(a) The co-holding respondent's wife's breasts in his hands, while she is in a restaurant cabin with her blouse and brassiere unhooked, is insufficient to establish adultery.

(a) No evidence of adultery was detected when the wife was observed riding another person's scooter or conversing with someone other than her husband.

(c) There is no evidence to support the wife's alleged infidelity when she was seen with another person in a room at 10 p.m. with the door closed but unlocked while the husband's mother and five adult children were present.

(d) Just because a male relative writes a married lady letters does not imply that there was an unlawful relationship between the writer and the recipient.

(e) A wife getting pregnant after her husband had a vasectomy without evidence that the procedure was successful eliminates any possibility of a wife having an illicit relationship.

(f) When the husband does not state this accusation in the notice of divorce prior to the filing of the lawsuit, serious concerns may be raised about the wife's alleged infidelity.

(g) When the husband files the divorce petition 8 years after learning that his wife has been having an extramarital affair and has not given a single explanation for the excessive delay.

(h) The mere fact that the alleged adulterer is in the parties' bedroom does not amount to an adulterous act.

(i) The wife's masturbation of the co-respondent is not adultery.

(j) The husband's claims that he observed his wife conversing with someone else three times during the day without any physical touch are insufficient.

While Adultery as an offence has been decriminalized, it still remains a valid ground for divorce.

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