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Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights. The fundamental rule of matrimonial law is that the spouses must live together. Each spouse is entitled to comfort (consortium) of the other.
When one of the spouses leaves the other without any reasonable excuse, the latter can approach the court by filing a petition praying for a decree of restitution of conjugal rights. The court after hearing the petition of the aggrieved spouse, on being satisfied that there is no legal ground why the application shall be refused and on being satisfied of the truth of the statements made in the petition may grant a decree for restitution of conjugal rights. The person who has deserted the spouse can defend the petition if there is sufficient cause on his or her side.
Restitution means restoring to the owner what has been lost. Decree of restitution of conjugal rights is an order of the Court, which says that the spouses must continue to live together or it directs the defaulting party for the restoration of marital duties and to cohabit with the other spouse. The restitution of conjugal rights means that is one of the parties of marriage leaves the other; the latter is entitled to compel the former to live with him or her as the case may be. Decree of restitution of conjugal rights could be passed in case of valid marriages only.
Marriage implies consortium, which means husband and wife are entitled to each other’s company and comfort. The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights requires that both parties to the marriage to live together and cohabit. The remedy of restitution of conjugal rights is open to both the spouses as against the other. The remedy aimed at preserving marriage and not at dissolving it as in the case of judicial separation or divorce. One of the important implications of section 9 is that it provides an opportunity to an aggrieved party to apply for maintenance under s 25. Hence, a wife who doesn’t want a judicial separation or disruption of marriage can attain maintenance from her husband without filing a suit for the same under the Hindu Adoptions and Maintenance Act, 1956. Moreover if there has been no restitution of conjugal rights for a period of one year or more after the passing of a decree for restitution of conjugal rights, it affords a ground for divorce to either party under s 13(1A).
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