Posted on: June 28, 2021 Posted by: admin Comments: 0

Author: Meenakshi Jena, Student at Symbiosis Law School, Hyderabad


Indian society and Indian laws always had a paternalistic attitude towards the private life of women. Under the garb of protecting the marriage, the personal life of a women has always been compromised and thereby, violating her privacy. The provisions on restoration of marriage by conjugal rights which is mentioned under Section 9 of Hindu Marriage Act, Section 22 of Special Marriage Act and other personal laws does not really analyze the struggle that the women face from the orthodox thinking of the society. These laws should be eradicated from the roots of Indian legal system as the law came from colonial times where women were considered as the personal property of the husband. Earlier, if the wife did not want to cohabit with her husband, after the decree of the court, she had to move on and live with the husband. This remedy, from the author’s point of view is just inhumane as the provision under this law does not align with the fundamental right, rather, this law is made just to settle down the matters which serve as a social purpose. It has been recognized by the author that these laws have been intervening into the personal lives of a women and into the domestic space of both the parties in order to protect the marriage. Moreover, it can be said that the court has been controlling the parties, mostly women, just to prevent unnecessary breakdown of marriage in society. Even after facing a lot of criticisms by many countries, sociologists and jurists, this law still exists in a huge democratic country like India. They say freedom is everything, but where is the so called ‘Freedom’ gone? the author believes that these laws are continuously intervening into the personal matters of husband and wife and claims that it protects the sacraments and family values. This law violates the fundamental rights, dignity as well as pride.


It is believed that marriages are made in heaven. Marriage under Hindu law is believed to be something which is pure and sacred. Marriage under all matrimonial laws binds each spouse under marital duties and responsibilities towards each other. They are legally entitled to stay together under one roof and respect each other’s mutual rights. Each of them is entitled to comfort consortium of the other. The society sees the husband and wife as single entity. India has a common legal system whose base is from the colonial period. Earlier it was believed that one spouse could not sue the other, and if anybody does so, he/she would be considered as ‘shameless’. But this belief was against the basic rights of a human, that is, he/she has to stay with other forcefully no matter what. But with the passage of time this rule could not bear the complexities of marital life faced in modern times, hence laws were reformed. It was seen that every marriage could not work out well. There are situations where marriage gets toxic where one of them keeps on dragging this dead relationship just to satisfy all the family members and the society and hence creates such a situation where one of the spouse stops taking the marital responsibilities and duties seriously or boycott the marriage or desserts the other partner and ultimately it all ends up like a horrible relation. Hence for situation like these, the laws were mended and new acts came into existence. In modern India, remedy is available to Hindus, under section 9, 10 and 13 of Hindu Marriage act,1955, to Parsi under section 36 of Parsi Marriage and Divorce Act,1936, to Muslims under general law, to Christians under the Indian Divorce act,1869, and to persons who married according to section 22 of Special Marriage act.

Section 9 of Hindu Marriage Act,1954 (HMA) talks about restitution of marriage through conjugal right, which reads that- “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.”

Similar provision is also made under section 22 of Special Marriage Act, 1954 (SMA). Hence restoring something which is lost between husband and wife takes out the topic of conjugal rights. This section talks about matrimonial rights of both the parties against each other and is available for only for legally wedded husband and wife.

Conjugal rights count in right to perform duties towards each other, right to have sexual intercourse, right to take care of the comfort consortium of the other party and right to have each other’s society. This law seems to be a remedy as it saves or preserves a marriage rather than breaking up and gives the couple a change to mend things between then. But in these cases, things should not be seen superficially[1]. Every individual has the right to choose, right of having a preference, right to privacy and personal liberty. Why should one go back to the same toxic relationship losing his/her dignity and personal liberty? Discussion has been going over this topic since 1983 when the Andhra Pradesh High court struck down section 9 of HMA proclaiming it to be violative of article 21 and article 14 of the Indian constitution. But then soon after the decision of Andhra Pradesh High Court was upheld by the Delhi High court the stating section 9 to be constitutionally valid as its objective is to unite the couple and minimize the divorce rate. Since then controversy on this topic has been going on without getting any definite conclusion.

In this paper, the researcher will be portraying the true nature and meaning of the law, which they call it as a remedy. The researcher has studied about the legal implementation or applicability and the constitutional validity of the law followed by the criticisms faced by this law on the basis of violation Fundamental rights, biasness, gender inequality and privacy along with the case laws and landmark judgments.


The researcher has used analytical and descriptive research method for the completion of this paper as all the information is gathered from secondary sources where the facts and the information has already been available. These provided me with the data since the initial time of the controversy. The researcher has critically analyzed the available facts from the following types of sources- books, magazines, articles, journals, reports, newspapers, case judgments etc. and everything sources has been duly acknowledged. For judgments, trusted online sites such as SCC online, Hein online, Jstor and Manupatra has been used.


The research questions are as follows-

  1. Whether restitution of marriage by conjugal right violates article 14 and article 21 of Indian constitution, that is, is section 9 of HMA and section 22 of SMA constitutionally valid?
  2. What are the applicability and legal implications of section 9 of HMA and section 22 of SMA?
  3. Why is the concept of conjugal rights so much criticized? Is it fair and just towards society?

The research objectives are as follows-

  1. To learn the meaning of section 9 of the HMA and section 22 of SMA in depth.
  2. To critically analyze the constitutional validity of section 9 and section 22 of SMA.
  3. To compare morality, individual rights and legal implementation of both the sections.

‘Restitution’ literally means something which is lost and ‘Conjugal’ means something which is between husband and wife. Hence, the term conjugal rights mean restoration of something which is lost between husband and wife.[2] This right is mentioned under section 9 of Hindu Marriage act and section 22 of Special Marriage Act. This right has always been controversial since the very first day of its implementation due to the nature of this law. In this paper, the researcher has limited its study only to the following chapters-

  1. Historical Background
  2. Nature and meaning of restitution of conjugal rights under Indian law.
  3. Legal implementation and applicability of the law
  4. Constitutional validity of the law
  5. Conjugal rights as a violation of fundamental rights (art-14 and 21 of Indian Constitution)
  6. What does the researcher want?

The concept of restitution of marriage by means of conjugal rights has come from Jewish law. It was introduced in India during British period. This remedy was neither recognized in Dharmashastra nor in Muslim law. It has its roots from England, there marriage is considered to a contract and a wife is considered as a husband’s chattels.  This law when implemented in India, was opposed by many. This law was applied in India to all the communities under the general law. The first case where this law was applied was Moonshee Bazloor vs. Shamsoonaissa Begum[3] which was decided by the privy council.

In this case, the husband disposed of the property of the wife and misbehaved with her. The wife was compelled to withdraw from the society and space of the husband. The husband claimed for the recovery of wife before the court under Specific Relief Act, but the wife denied saying there’s no such law where custody of wife is permitted. In appeal, the husband stated that under Muslim law, the wife cannot desert husband or leave him even if he misbehaved or ill-treated his wife. So, the court decided that under the Islam law, the restitution of marriage can be carried out.

As the time passed, the makers included this law as a remedy under personal laws in India without understanding from the partner’s point of view.


Section 9 and 22 of HMA and SMA reads 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, being satisfied with the truth of the statements made in such a petition and that there is no legal ground why the application should not be granted, may, decree restitution of conjugal rights accordingly”. Similar provisions are made for Muslims under the general law, to Christians under sec- 32 and 33 of Indian Divorce act and section 36 under Parsis marriage and divorce act for Parsis.

Meaning thereby, if either the husband or the wife who without any reasonable excuse withdraws from the society of the other party, then the aggrieved party can file a suit for restitution of the marriage and on being satisfied with the facts and statements made, the court will direct the other party to stay or cohabit with the other party. however, the burden will be on the respondent, that is, the one who withdrawn from the society of the other.

This law is comprised of two words ‘restitution’ and ‘conjugal rights’. The idea the makers had while implementing this law as remedy was to preserve a marriage, only when the following conditions are satisfied-

  • Spouse has withdrawn from the society of the aggrieved party
  • There is no reasonable excuse
  • The court must be satisfied with the facts
  • No legal grounds for refusing the decree by the court

This law is implemented to all the couples who are married under the Hindu Marriage act or Special Marriage act or any other personal law and they should not be under any influence of bigamy of polygamy. But while implementing this law practically, it can be critically analyzed that it shows its biasness against women by violating the privacy and intruding into the personal matters. Moreover, it can also be noticed that the language of the provisions made by the law is not clear. In the case of Shanti Devi vs. Balbir Singh[4], the court gave the following requirements while filing petition for restitution of conjugal rights and indicated these three conditions to be satisfied-

  • There must be withdrawal from the society of other without reasonable excuse
  • The court must be satisfied with the statements made by the petitioner
  • There should be no legal ground for rejecting the petition.

The first term ‘withdrawal’ and ‘reasonable excuse’ seems ambiguous as there is no explanation made for it. Something which is reasonable for one may not be reasonable for the other. It all depends upon the prediction and interpretation which varies from person to person under fact to fact, and since, the burden of proof is on the party who has withdrawn from the society of the other, it cannot be said that whether the withdrawal of the party is made by consent or was it forceful. Secondly, in the case of Tiranth Kaur vs. Kripal Singh[5], a series of judgments were made which meant that according to Hindu custom, it is the duty of the wife to submit herself obediently to her husband and perform marital obligation. Justice Grover said that under section 9 of Hindu Marriage Act, the wife can ‘virtually’ withdraw from the society of the husband, but the follow up judgment by Justice Bhargawa said that a wife is always expected to perform her marital obligation at her husband’s residence and if she does not do so, then it will be a considered that the wife has withdrawn from the society of the husband. So, in this case, it was held that the wife must be under the authority of her husband to accept any job or profession and if she refuses to do so, it will be considered as ‘withdrawn from the society of the other’.

On the other hand, in the case of Shanti vs. Romesh[6], Justice Katju in the court of Allahabad, held that refusal of wife to resign from a job is a valid ground for withdrawing from the society. Similar judgments were observed in the court of Gujarat, Rajasthan and Madras High Courts. They said that leaving the job and cohabiting with the husband may be valid in past but now, the society is changing and so should be the thinking of the society. Leaving apart from husband for job necessities does not amount to ‘withdrawal from the society’.

There is no proper definition made for ‘withdrawn from the society’ and ‘reasonable excuse’, rather it has created confusion among the minds of the society that what is reasonable and what is not. So just on the basis of mere interpretation, this law or remedy what the makers said, should not be implemented.


The issues of constitutional validity of section 9 were first raised in the case of T sareeta vs Venkatasubbiah[7], where the Andhra Pradesh HC struck down this section by saying that “the right to privacy belongs to an individual and is not lost by marital association”. Justice P. Chaudhary held that section 9 of HMA violates human dignity and right to privacy, hence void and unconstitutional. It is the grossest form of violation of one’s privacy. The AP HC observed that implying section 9 compels the wife to have sexual relations with her spouse thus deprives her of having control over her own body. In the case of Harvinder Kaur vs. Harmendar Singh[8], the Delhi High Court did not accept the judgment given by the Andhra Pradesh High Court, and overruled it in the case of Saroj Rani vs. Sudarshan[9], saying that implying section 9 will help preserve a family without even taking the consideration of the choice of the wife.

However, in the case of K.S. Puttaswamy vs Union of India[10], the SC gave the judgment just a year before this case that individual’s right to privacy includes complete autonomy over their own body. However, taking into account the fact that marital rape is not an offense in India[11], forcing a woman to cohabit with her husband and perform her obligations deprives her of the right to choose whether or not to have sexual relations, as her husband may have sexual intercourse with her when he has the desire to do so without even getting legal punishment. Thus, even if section 9 of the HMA does not make sexual intercourse compulsory, forcing a woman to stay with her husband against her will puts her at risk of marital rape as it deprives her of control over her own body and thus violating her right to privacy, ultimately violating article 21.[12]  When partners are forced to stay/cohabit with each other by the decree of court, it may be called a ‘house’ but not a ‘home’. No remedy or legal provisions can build a relationship if there’s no love, trust and mutual understanding. It will merely be a dragging of a relationship, nothing more.

The question which arises here is- why are we going back to the age of barbarism where a wife’s choice, consent or will does not matter to anybody? Where she is just treated like a puppet by her husband and asked her to come back whenever he wants? Coercion by court cannot change or preserve any marriage, neither can the court soften the hard ruffle feelings between them nor can clear the misunderstanding between the parties.

Till date this remedy is still being criticized by people. On 2019, Ojaswa Pathak, Mayank Gupta (students of GNLU) along with senior advocate Sanjay Hegde argued before the Supreme court and filed a petition that section 9 of HMA and section 22 of the Special Marriage Act is not gender neutral as it considers women as ‘chattel’ or personal property/possession of the husband. This section violates article 14, 15(1) and 21of Indian constitution.


It is very clearly mentioned in the language of law the use of phrase ‘either of the spouse’, which means that equal protection is given to the made and the female. But looking deeply into the nature of this act, section 9 and 22 (of HMA and SMA resp.) does not promote equality in true sense. Mostly it is seen that the husband projects himself as the aggrieved party and seeks this remedy. The other party, that is the wife has to join the society of the husband as per the direction of the court, which is the saddest part here. Hence, misusing of the word ‘equality’. Though right is meant to be used by both the parties, but it is mostly misused by the husband only.

Now, coming to the part where this law violates article 21 of Indian Constitution, every individual has the right to choose his/her partner. But by the conduct of restitution of conjugal rights, mostly the wife is compelled to leave the job and asked her to cohabit with her husband and is compelled to beget a child. Where is privacy? Moreover, it is a woman’s own choice as to where, how, when and by whom her body will be touched. Cohabiting with her husband forcefully pushes her to an extent when she will have no longer control over her body and will be controlled by her husband, thereby increasing the crime rate of rape or domestic violence etc. Though this law nowhere talks about ‘sexual intercourse’ or ‘cohabitation’, but still it is included within the ambit of conjugal rights.

Thus, the researcher appreciates the judgment passed by Andhra Pradesh High court, in the case of T. Sareetha vs. T Venkata[13], discussed above, where the right and dignity of a woman is cherished and by declaring section 9 of the HMA to be constitutionally invalid as it violates the basic Fundamental rights of the aggrieved party, mostly women. Living apart from the partner is one’s personal choice. Marital duties should be decided only by the couple and not by the society or by the court. No one should interfere in their domestic matters. Many other countries including England repealed the same provisions in 1970 and stated that ‘a Court order directing two adults to live together is hardly inappropriate method of attempting to effect a reconciliation’.

The Fundamental rights are cherished and exercised by every individual. If any existing law including personal law, clashes with any fundamental right, then the fundamental right will be exercised and the law must be amended. Though we talk about equality between gender but the society we live in still has the orthodox thinking. They believe that male is aggressive in nature and female is submissive in nature and that the women should stay at home and serve the husband. So, in a society like this, it is highly impossible to implement this law as a remedy as it questions the dignity and the pride of the women.[14]


Through this paper, the researcher seeks to repeal the remedy of ‘restitution of conjugal rights’ from the personal laws. This remedy is outdated and unconstitutional as it violates fundamental rights of individuals, particularly women. Moreover, we live in this society because of the dignity and the pride we created since birth, but by the implementation of this law, the dignity of a person is harmed. It is unreasonable to give thoughts in ‘saving of a marriage’, ‘unnecessary divorce’ etc. at the cost of liberty and autonomy of an individual. This remedy is considered as be the most inhumane and barbaric. Many other countries have already excluded this right but unfortunately in India, this remedy still prevails. There is no denial to the fact that the law was implemented in a good conscience but it is morally wrong to force any partner to cohabit with the other. If the parties do not want to stay willfully, then making them cohabit forcefully is just wrong. Therefore, the researcher strongly believes that this law should be repealed at the earliest because ‘the sooner, the better’.


It cannot be denied that the implementation of the act has been a symbol of unity but at the same time it should also be taken into consideration that marriages should be performed specifically, that is, both the parties should agree to stay with each other. Here willingness to stay with each other is the main criteria that should be taken into consideration. The court order should not force them to stay with each other. It is seen in the provision of section 9 of HMA and section 22 of SMA that if one of the spouses leaves the company or the society of the other without any reasonable excuse and there is no relationship or contact between them for one year, then, the spouse whose company is being left can file a divorce petition. So, here mostly the spouse who is guilty here gets the advantage of his own behavior. It cannot be said that whether the spouse has left the husband with her own will or not, the husband might have forced the wife to the extent that she left his company. Hence, this section seems to protect the wrongdoer. In the manner of exercising section 9 of HMA as a matrimonial right, the guilty person acts or pretends to be the victim whereas the real victim goes through all the sufferings and conflict.[15] This remedy is considered to be the most barbarous and inhumane nature of law. Many Western countries have also abolished this privilege, but sadly we still pursue it. There is no question that the adoption of the HMA has given our Hindu marriage a sense of contract and holy, but it is still very evident that marriage may never be actually executed. When the two parties to the marriage could not continue happily with each other, then a legal order from the court should not compel them to live together. By compelling, the wife’s life is put to risk. Who knows the husband might end up being cruel or abuse her verbally?

In summation, the researcher believes that the grounds of Section 9 of Hindu marriage act and Special marriage act is just baseless and barbarous and violates basic human rights. It is unconstitutional and thus, it is high time now to abolish this provision from the HMA or any personal laws as it violates the Right to equality and the Right to privacy which is the most important Fundamental Rights of our Constitution.


[1] Zigisha Pujari, “Restitution of Conjugal Rights v. Right to Privacy.” Journal of Family & Adoption Law. 2019; 2(2): 4–8p.

[2] Ekta Kumar, “ Analysis of Restitution of Conjugal Rights”

[3] (1987) 11 MIA 551

[4] AIR 1971 Delhi 294

[5] PLR (1963) 65 315

[6] 1955 (25 of 1955)

[7]  AIR 1983 AP 356

[8] 1984 Del 66

[9] 1984 SC 1562

[10] 2017 10 SCC 1

[11] S. 375, INDIAN PENAL CODE, 1860

[12] Paluck Sharma, “Comparative Analysis on restitution of conjugal rights”, Indian National Bar Association.,of%20Moonshee%20Buzloor%20Ruheem%20vs.

[13] AIR 1983 AP 356

[14] Agrim Jain, Abhinav Aggarwal, “Restitution of Conjugal Rights: Is it still relevant?”, IJLMH, vol.-2, issue-1 (2018)

[15] Chandra, Sudhir. “Rukhmabai: Debate over Woman’s Right to Her Person.” Economic and Political Weekly, vol. 31, no. 44, 1996, pp. 2937–2947. JSTOR

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