Subject : FAMILY LAW

   Title :       Hindu Women And Restitution Of Conjugal Rights: Do We Need The Remedy?
   Author : Mr. Prashanth S.J  

Marriage constitutes the very basis of social organization. Hindu law regards marriage as a sacrament—indissoluble and eternal. This sacramental character of marriage has given rise to certain anomalies. The declaration of Manu that “neither by sale nor by desertion is wife released from the husband”[1] was hitherto applied only to women and not men. Thus there was an element of inherent injustice on the wife in Hindu law. To counter such inequalities among spouses and to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was enacted which provided certain matrimonial remedies. One such remedy is that of ‘Restitution of Conjugal Rights’. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit. But over the years, this remedy has been misused, abused and exploited. Today it is nothing more than a springboard to other remedies. The non-compliance to the decree of restitution is more ruthless than the remedy itself. The remedy directly affects the right to life, right to privacy and the right to equality and hence unconstitutional. The purpose of this paper is to throw light on the inherent disparities in this law and the need to do away with this remedy. Finally an alterative remedy is suggested.




The remedy of Restitution of Conjugal Rights[2] is a new notion in Indian matrimonial jurisprudence that finds its origin in the Jewish laws. The remedy was unknown to Hindu law till the British introduced it in the name of social reforms. In fact it is the only matrimonial remedy which was made available under the British rule to all communities in India under the general law[3]. After independence this remedy found place in the Hindu Marriage Act, 1955[4].  But even as the Hindu Marriage Act was being passed in the Parliament, there were voices of scepticism regarding the efficacy of the remedy. Mr. Khardekar had opposed the remedy, saying, “to say the least this particular cause is uncouth, barbarous and vulgar. That the government should be abettors in a form of legalized rape is something very shocking…”[5]. Bromley has also opposed this concept in his book.[6]  Sir J.Hannen in Russell v. Russell[7] also vehemently opposed the remedy saying, “I have not once known a restitution petition to be genuine, that these were merely a convenient device either to enforce a money demand or to obtain divorce.”[8] Some scholars[9] have even expressed the view that the remedy should be abolished. Unfortunately all pleas to abolish the remedy have fallen on deaf ears. The inherent incapacity of the remedy has been manifested numerous times in various forms yet we are continuing with this archaic remedy even though it has been abolished in England by the Law Reforms (Miscellaneous Provisions) Act, 1947.



In the light of the above discussion the remedy has been challenged on the following grounds—

1.      Insincerity of the petitioner in restitution cases.

2.      Enforcement of the decree.

3.      The fallacy in  Saroj Rani  v. Sudarshan Kumar Chadha[10].

4.      In violation of the fundamental right to life, privacy and equality. 



The most fundamental problem with the remedy is the insincerity of the petitioner. The remedy is blatantly misused to achieve ulterior purposes other than reconciliation. The root cause of this problem lies in S.13 (1-A)(ii) of Hindu Marriage Act, 1955. This section says that if a restitution decree has not been complied with for a period of one year the parties can file for divorce.[11] The general trend in restitution claims is that the “aggrieved party” files a restitution petition, then does not willingly comply with the decree and after the statutory period of one year, files for divorce under S. 13 (1-A)(ii) on the ground of non-compliance with the decree. There is a string of cases to this point[12]. In fact, Justice Rotagi in Harvinder Kaur v Harminder Singh[13] recognised that “the legislature has created restitution of conjugal rights as an additional ground for divorce”.[14]

Yet another major problem with restitution petitions is that it is used as a defence for maintenance suits. In England where until 1949, a married woman’s claim to maintenance could be sustained only if she has already applied for some other matrimonial relief. Almost every restitution petition made by the wife was to prepare the ground for claim of maintenance. This was aptly proved by the fact that when the law was changed and maintenance could be claimed without any previous claim to some other relief[15], the number of wives’ restitution petitions fell by more than sixty-three percent within a couple of years.[16] The situation is no different in India. In Veena Handa v Avinash Handa[17], the husband in order to frustrate his wife’s claim for maintenance sold all his property like television, scooter, etc. He divested all his property to his relatives and alleged that he did not own any property in land. The husband also spent a night with his wife, after the decree of restitution was passed and then after a year he filed for divorce on the ground that there has been no restitution for a year. When the trail court granted the relief, he immediately married another girl, notwithstanding the wife’s appeal against the divorce decree in the higher Courts. Similarly, in Bitto v Ram Deo[18] the husband falsely accused his wife of being unchaste to frustrate her claim for maintenance when she filed for restitution. This shows how restitution petitions are blatantly misused for ulterior purposes other than reconciliation. Moreover, restitution petitions are filed in the District Court, these cases go unreported, thus making it difficult to get an estimation of the actual number of petitioners who have been misusing the remedy. If we were to take into account these cases then we would get the true picture of how the remedy is being blatantly misused.



“The order of restitution of conjugal rights is observed by its breach rather than its obeyance.”[19] When a person fails to comply with a decree of restitution the Court has a power to enforce the decree under Order 21 Rule 32 of Civil Procedure Code, 1908. Under Rule 32(1),[20] if the party wilfully does not comply with the decree, then the Court can attach the property of the decree- holder. Under Rule 32 (3),[21] the Court has the power to sell the attached property if the decree holder has not complied with the decree for six months. The difficulty arises if the judgement–debtor has no actual property in possession. In India, we find that in most cases and especially in rural India that wives’ do not have actual possession over any property. In such cases, if a restitution decree is not complied with, then the court is required to ascertain the share of the wife in the property of her husband, when it is not divided and arrive at her share in the property, but this involves cumbersome procedures. Difficulty also arises if the husband is a property-less person—say, a daily wage labourer living in a slum—how will the Court execute the decree in such cases? It is naive to think that coercing a person that his property would be attached and sold away can change the attitude of the adamant spouse and make him obey the decree. The aim of this remedy is the cohabitation of the spouses, but when the property is attached and sold, it will lead to bitterness between the spouses and the purpose of the remedy is frustrated



The question of constitutional validity of S.9 for the first time came up in came up in the case of T Sareeta v Venkatasubbiah[23] where the husband had himself asked the Court to pass a decree of restitution of conjugal rights and after completion of a year he filed a petition for divorce on the ground that the decree has not been complied to. The wife challenged the constitutional validity of S.9 of the Act. Justice Chaudhary of the Andhra Pradesh High Court held S. 9 to be “savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution, hence void”.  The dictum of Chaudary, J. did not find favour with the Delhi High Court in Harvinder Kaur v Harminder Singh[24]. Rohtagi, J observed  Justice Chaudhary’s overemphasis on sex is the fundamental fallacy in his reasoning. He seems to suggest that restitution decree has only one purpose, that is, to compel the unwilling wife to have sex with her husband ”(emphasis added). The matter finally came before the Supreme Court in Saroj Rani v Sudarshan Kumar Chadha[25] where the Supreme Court overruled T Sareeta relying on the judgement of Justice Rotagi in Harvinder Kaur. Referring to the judgement of the Andhra Pradesh High Court in T Sareeta’s case, Justice Sabyasachi Mukarji observed that, “it cannot be viewed in the manner the learned single Judge bench of the Andhra Pradesh High Court has viewed it and we are unable to hold that S.9 to be violative of Article 14 and Article 21 of the Constitution”[26]. (emphasis added)

However, the pertinent question is how far is the judgement of Justice Rotagi in the Court emphasised so much in Saroj Rani’s case reliable? A general reading of Justice Rotagi’s judgement shows that he himself does not approve of the remedy but was forced to rely on it since it is there.

In para 78 of his judgement the learned Judge says, “even the most fervent and sincere hope of one spouse that there will be reconciliation cannot create a possibility of reconciliation where the other spouse is irreconcilable. Whatever maybe the cause of breakdown of marriage, if there is a withdrawal from matrimonial obligations with the intent of destroying the matrimonial consortium as well as physical separation, there is a clear sign that the marriage is at an end.” The learned Judge recognises the futility of the decree of restitution of conjugal right, why should a marriage that has come to an end be restored by a restitution decree?

In para 74 the learned Judge says, “so the legislation is creating a number of grounds for divorce, what is bad in it? He speaks of the intent of the legislature. If restitution petitions are to be used as a springboard for divorce as intended by the legislature, then do we really need it?

 In para 85 the learned Judge says, “what has to be remembered is that it is not given to the judges to rewrite the statutes. It is for the legislature to amend and abrogate the law. As long as it does not change the law we must learn to leave with it”. The learned Judge wants to do away with the remedy but sees he is helplessness in abolishing the remedy

 In para 87 the learned Judge recognises restitution of conjugal rights is an archaic remedy I cannot agree that S.9 is unconstitutional howsoever the remedy may be outmoded or out of tunes with the times. The restitution decree in the scheme of the Act is a preparation for divorce if the parties do not come together”.

Para 91 shows the true intention of the Judge in the end I will repeat what I have said before it is for the legislature to abolish the remedy of restitution and not for the Courts to strike it down in the ground that it is unconstitutional. In my opinion S. 9 is perfectly valid”. The judge seems to want to do away with the remedy, but the existing laws tie his hands. 

            This case raises more question than answers. The learned Judge wants the legislature to abolish the remedy as he incapable of doing it by himself. He holds that the remedy is constitutional merely because the existing laws tie down his hands. The judgement is very ambiguous and is hard to explain. If Justice Mukarji in Saroj Rani’s case has relied on such an ambiguous judgement to declare that Section 9 is constitutionally valid. I think it is time that we take a second look. It is time that we must look into the broader aspects of marriage and decide on this vital point.



Restitution of conjugal rights violates equality and right to life[27]. Equality does not mean physical equality between husband and wife, but it means equality of thought, action and self-realisation. Moreover, it is anachronistic for educated women to be forced by State power to go and live in a place, where from they have withdrawn.[28]Some scholars recognise the continuance of the remedy is bound to lead to unwanted pregnancies and assert it as infringement of a woman’s sense of self-respect, dignity and individual fulfilment[29].  

The right to privacy is not expressly guaranteed in the constitution, it is implicitly provided in Article 21 of the constitution. There has been no fixed definition of privacy. Subba Rao, J. in Kharak Singh v State of U.P [30] “any definition of right to privacy must encompass and protect the personal intimacies of the home, family, marriage, motherhood, procreation and child rearing”. In Bai Jiva v Narsing Lalbhai[31] the Bombay High Court held that the Courts have no right to force the wife to return to her husband against her will.[32] This compulsion of the Court acts as a psychological restraint on an individual. The US Supreme Court in Eisenstadt v Baird[33] held “the marital couple is not an independent entity with a mind and a heart of it own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person”. The position is well explained by Justice Subba Rao in Kharak Singh’s case[34]. In that case he said that “the right to personal liberty takes in right not only to be free from restriction placed on his movements but also free from encroachments into his private life…In the last resort, a persons house where he lives with his family is his ‘castle’: it is rampart against encroachment against his personal liberty. If physical restraints on a person’s movement affect his personal liberty, a physical encroachment on his private life would affect it to a large degree. Indeed nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy. We would therefore define right to personal liberty in Article 21 as a right of an individual to be free from restriction or encroachments imposed directly or indirectly brought about by a calculated measure”.




Now, if we were to abolish the remedy, what next? A member of the Indian Parliament once suggested that the remedy for restitution might be substituted by reconciliation.[35] R. K. Agarwala in her article[36] has accepted this view. The tone in restitution seems to be quite harsh and compelling. The petitioner is asking the unwilling respondent to cohabit; this might further deteriorate the relationship than make it up. The tone of reconciliation is more mild and requesting. If the remedy is reconciliation then it might be inoffensive and might not only lead to cohabitation but also clears the misunderstanding.

R.K Agarwala has provided in her article[37] the way we can actually bring about reconciliation:

Ø      The Court might be authorised to appoint a committee for reconciliation consisting of the judge himself, the spouses and one or two of the relatives or friends selected according to the choice of the spouses on each side.

Ø      The Court should not sit as a Court to condemn or adjudge but as a conciliator.

Ø      It the committee fails in its purpose, but it feels that reconciliation might be attained through the help or guidance of an expert, e.g. psychiatrist it might take such help.

Ø      The procedure should be termed as counselling.

Ø      The failure of this procedure should not bar the claim for maintenance.

Ø      Further, the failure of such counselling need not be considered as a ground for divorce.

The idea of reconciliation is a good one, but I would like to propose some changes to the suggestions made by R.K Agarwala. Instead of the judge, sitting as one of the committee member’s let some eminent person/s of the society do the job, as the function of the Court is to settle disputes not reconciliation. Let Courts not be actively involved in the process of reconciliation but let the committee formed be a semi-independent committee to the extent that it is appointed and supervised by the Court. The chances of reconciliation are greater where there is private intervention and persuasion rather than the intervention of the courts.[38] If the committee fails in the counselling even after taking expert’s help let this be viewed as failure of the marriage and be treated as a ground for divorce. If not treated as a ground for divorce then the parties will go back to  Courts and the whole procedure of counselling will be a mere mockery. Reconciliation attempted in divorce cases has proved satisfactory, and useful according to a socio-legal data study made in Poland.[39] Perhaps, the Courts will consider this as a better solution as it will be less burdensome on the Courts, since no cumbersome procedure will be involved. Reconciliation is fast, effective and practical solution to restitution of conjugal rights. Perhaps it is the only solution to put an end to this barbarous remedy.

[1] Manu,IX 46.

[2] Section 9, Hindu Marriage Act, 1955 “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 a petition and that there has been no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”

[3] Paras Diwan, Law of Marriage and Divorce, 3rd  edn., 1999. 

[4] Ibid. at 2.                                                                                                                                                            

[5] See Jaspal Singh, Law of Marriage and Divorce in India, 83 (1983).

[6] Family law  “It is obvious that if a relationship between the parties is such that the respondent will not resume cohabitation before the petitioner brings restitution proceedings, a decree which has no sanction if it is disobeyed is not likely to induce him to do so…”, ( See Raj Kumari Agarawala, “Restitution of Conjugal Rights: A Plea for the Abolition of the Remedy”, J.I.L.I p. 256,1970).

[7] (1897) AC 395.

[8] Ibid. at p. 455.

[9] Raj Kumari Agarawala, “Restitution of Conjugal Rights: A Plea for the Abolition of the Remedy”, J.I.L.I. 256,1970; Paras Dewan, Modern Hindu Law, 166(1985); Jaspal Singh, Law of Marriage and Divorce in India, 84,(1983), Kaul,J.l and Dhingra,I.C. “Hindu Women and Restitution of Conjugal rights: A plea for the Abolition of the remedy.” Women and the Law: Problems and Perspectives, Deep and Deep Publications (1996). 

[10] AIR 1984 SC 1562.


(ii) “Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground –

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.”

[12] Jaswider Kaur v Kulwant singh AIR 1980 P&H 220, Santosh Kumari v Mohan Lal AIR 1980 P&H 325,KS Latitamma v NS Hirianniah AIR 1983 Kar 63, Saroj Rani v Sudarshan Kumar AIR 1984 SC 1562, Harvinder Kaur v Haminder Singh AIR 1984 Del 66, Banti Devi v Moti Ram AIR 1990 HP 35. Murlidahr Rao v Vasantah Rao AIR 1984 AP 54, T Sareeta v Venkatasubbiah AIR 1983 AP 356.

[13] AIR 1984 Del 66.

[14] Ibid. at para 74.

[15] Law Reform (Miscellaneous Provisions) Act, 1949.

[16] Bromley, in Family Law note 11 at 168.

[17] AIR 1984 Del 444.

[18] AIR 1983 All 371.

[19] Dhingra,I.C and Kaul, J.L id f.n 8.

[20]Rule 32(1)  “Where the party against whom a decree of restitution of conjugal rights has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree of restitution of conjugal rights by the attachment of the property…”

[21]Rule 32(3) “Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for six months if the judgment –debtor has not obeyed the decree and such decree holder has applied to have the property attached property sold, such property may be sold; and out of the proceeds the Court may award the decree holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment –debtor on his application.”


[22] AIR SC 1984 1562.

[23] AIR 1963 AP 356.

[24] AIR 1984 Del 66.

[25] Ibid. at 22.

[26] Ibid. at 1562.

[27] Dhingra,I.C and Kaul, J.L supra f.n 8 . T Sareeta v Venkatasubbiah AIR 1963 AP 356.

[28] Id. at 8.

[29] Id. at 8.

[30] AIR 1963 S C 1295.

[31] AIR 1927 Bom 264.

[32] The learned Justice said, “Hindu law itself, even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanction or procedure, as compulsion by the Courts to force her to return against her will”.

[33] 405 US 438, 31 L Ed 2d 349, 92 S Ct 1092.

[34] Supra f.n 26.

[35] Mrs.Renu Chakravarthy,Lok Sabha Debates, pt.2,session 9th 1955, vol 4, p.7625.

[36] Supra. at 8.

[37] Supra at 8.

[38] Dhingra,I.C and Kaul, J.L, supra f.n 8


[39] Jan Gorecki, “Divorce in Poland—A Socio-Legal Study,” published in Sociology of Law 109-111 (Vilhelm Auburted 1969).


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