A Hindu Law for Restitution of Conjugal Rights

 Hindu law says husband and wife become one after marriage. Marriage and cohabitation are essential for a healthy family. Cohabitation has become more of a choice as the world changes. There have been numerous developments in restitution of conjugal rights since its creation during the British era. The origins, jurisprudence, working, and current status of Hindu restitution of conjugal rights are discussed. 

A short introduction:

A married couple has certain legal rights and obligations under matrimonial law. Cohabitation is implied by marriage. Both spouses are allowed to join consortiums. Maintaining a conjugal life together is a legal requirement. In the event that a companion withdraws from the other, they can obtain a statutory matrimonial relief in order to reestablish their status as the other subject on the basis of specific facts and realities. If you wish to resume cohabitation, you can file a court petition. Restitution of conjugal rights is what it is called.



As a consequence of a modification, variation, or reversal of a decree, restitution means restoring to a party what he has lost. From the French word ‘conjugate’, which means to join or unite in marriage, the term ‘conjugal’ refers to a relationship between a married couple. The institution of marriage itself contains conjugal rights that are not merely created by statute."

An Overview of History:

Confederal rights have never been refunded in Hindu Dharma shastras or Muslim law. It was introduced to India by the British. English law was influenced by Jewish law in this regard. The restitution of conjugal rights has its roots in feudal England, where marriage was viewed as a property deal, and wives became part of men's possessions, so it is often viewed as anachronistic or unsuitable for Indian conditions. A case in 1867 introduced the concept of restitution of conjugal rights in India, where such actions were considered as specific performance considerations.

A set of provisions and procedures:

A party whose spouse withdraws from the society of their spouse without reasonable excuse can apply for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. The district judge can revert the conjugal rights upon approval of the petition and in the absence of legal grounds for denial.


In the event of a petition being filed, a copy and hearing date will be sent to the other party; both parties must appear before the court on those dates, and counselling sessions will follow. Sessions typically last about four months, with three meetings scheduled at regular intervals of 20 days. Upon filing the petition, a copy and the hearing date are sent to the other party; both parties are required to appear in court on the mentioned dates, and three counselling sessions are held for about four months at regular intervals of 20 days.

As part of an order of restitution of conjugal rights passed in Sushila Bai v. Prem Narayan [4] , the court defined certain circumstances that could qualify as valid defenses.


  • Respondents can claim matrimonial relief.

  •  This evidence proves the petitioner's misconduct.

  • Certain acts or omissions render marriages unfit.’[5]


Under these conditions, the court will grant a judicial separation rather than restitution of conjugal rights


These acts or omissions must be grave in nature, including acts or omissions that:


  • Spouse's health is affected

  • Stresses the spouse

  • Defends the spouse's character

  • Resulting in spouse neglect


The husband may also be a drunkard or non-vegetarian, hate or insult the wife, or taunt her constantly for dowry, among other reasons.

Conjugal Rights Restitution Decree Execution:

In order to satisfy a decree, a spouse must file an execution petition. A decree holder can satisfy the decree by moving the decree to a trial court through execution. Upon execution, the decree-holder may recover the relief the decree granted.


A decree passed for the restitution of conjugal rights is executed under Order XXI Rule 32 of the Code of Civil Procedure:


“An injunction or decree for specific performance of a contract, or for restitution of conjugal rights, or for specific performance of a contract, can be enforced if the party has had the opportunity to comply with it, but has willfully failed to comply.


  • Attaching property

  • In the event of a specific performance decree or an injunction, or

  • Either by attaching his property or by both

Non-compliance with restitution of conjugal rights:

In spite of the decree for restitution of conjugal rights, the decree-holder cannot force the judgment to resume cohabitation. If the spouse does not return or resume cohabitation after a period of one year after the restitution was authorized, the decree-holder can file a divorce petition. In spite of the decree for restitution of conjugal rights, the decree-holder cannot force the judgment to resume cohabitation. If the spouse does not return or resume cohabitation after Once the restitution has been authorized, the decree-holder may file a divorce petition after a period of one year. Non-compliance with the order of restitution would constitute contempt of court. Non-compliance with the order can only lead to divorce.


After the decree has been passed, either party can file a divorce petition under section 13(1A)(ii) of the Hindu Marriage Act. It may be satisfied that a petitioner is not barred by any bar outlined in Section 23 of the Act before granting a divorce decree. When a spouse obtains a decree under Section 9 of the Act, he cannot seek relief under Section 13(1A) if he fails to comply with it and acts woefully, such as maltreating or removing her. There are, however, conflicting views about how section 23(1)(a) applies.  

Provision's constitutionality:

As opposed to restitution of conjugal rights, several parties argued it violated the right to privacy, violated the right to association, or union, and prevented them from settling and practicing any profession. Several people argued restitution of conjugal rights violated the right to privacy (Art. 21), the freedom to associate or union, and the freedom to practice any profession.


The present social framework in which women have proven equal to men in all fields, especially in the workplace, does not justify granting a decree of restitution to the husband merely because she refused to quit her job at the husband's request. K.M. v. Swaraj Garg As stated in Garg[15], Article 19(1)(e) and (g) were not violated, but the decree was not granted on social grounds based on the wife's reasonable argument that she suffered from constant disparagement and cruelty from her husband. Further, the husband was experiencing financial turmoil and was not in a stable position while the wife was able to earn a decent living at her job.

Restitution of conjugal rights and maintenance:

The Hindu Marriage Act, 1955 also provides for maintenance under Section 25 for petitioners as well as restitution of conjugal rights under Section 9. Even if the action concerning maintenance under Section 25 remains pending, a wife who refutes the disruption of the marriage can get maintenance from her husband under the aforementioned provisions of law. It is gender-neutral, so the husband may also claim maintenance from his wife under this provision.

Striking down of the provision of Restitution of Conjugal Rights:

As a result of a plea seeking to strike down the restitution of conjugal rights provision, a Supreme Court bench requested a response from the Attorney General in January 2020. There is a possibility that the provision may be quashed since it has been filed and reference has been sought. In any case, it will be a breakthrough in the history of personal law if the provision is quashed.




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