SECTION-9 OF THE HINDU MARRIAGE ACT

INTRODUCTION

Marriage has been seen as a highly holy and strong bond that exists not only between two people but also between two families. Marriage and family are two important foundations of Indian culture. However, if the marriage does not appear to be working, a situation may evolve in which one partner does not feel at ease living with the other. Section-9, on the other hand, gives the spouse the right to summon the other spouse back to stay with him or her again. Hence, the matrimonial relief is provided under Section-9of the Hindu Marriage Act, 1955 is the Restitution of Conjugal Rights Petition. This right provides a solution or an opportunity to salvage the relationship and the family, but it does notforce anyone to stay with someone.Furthermore, if the restitution of conjugal rights order is not followed for more than a year after it is issued, it becomes grounds for divorce. The wife (petitioner) alleged that her husband was married and had kept his marital status a secret from her in the case of Ranjana Kejriwal v. Vinod Kumar Kejriwal. The petition under Section -9 is not maintainable, according to the court, because there is no formal marriage. Hence, the Petitioner can file the petition only if the marriage is valid.

ORIGIN OF RESTITUTION OF CONJUGAL RIGHTS

The Dharmashastra does not accept restitution of the conjugal rights, and Muslim law does not make any procedures for it. It was associated with the Raj or British rule. In modern India, the remedy has been provided to Hindus ( Section-9of the Hindu Marriage Act 1955), to Christians (Sections-32,33 of the Indian Divorce Act,1869), to Parsis(Section -36 of the Paris Marriage and Divorce Act,1936)to people, those married under the Special Marriage Act have (Section-22 of the Special Marriage Act,1954 ).

MEANING OF RESTITUTION OF CONJUGAL RIGHTS

The term “Restitution of ConjugalRights” means “Right to stay together”. It means the relationship between a married couple. If one spouse submits a petition in family court for restoration of conjugal rights, the court may order the return of conjugal rights if the court is convinced that the petition’s allegations are genuine and that there is no reason why the application should not be granted.

ESSENTIALS OF RESTITUTION OF CONJUGAL RIGHTS

The petitioner must demonstrate the following to get an order of restitution of marital rights:-

  • The respondent has left the petitioner’s society.
  • The respondent’s withdrawal was made without justification.
  • The fact that the assertions made in the petition are true has satisfied the court.
  • There is no legal basis for the denial of an application.
  • The responding party may then be ordered to live with the petitioner by the court.

The petitioner acquire an order of restitution of conjugal rights in the case of Sushila Bai v. Prem Narayan(AIR 1986 MP 225), in which the court issued a restitution order and confirmed the aforementioned criteria as grounds for restitution.

WHO CAN FILE THE PETITION AND WHERE?

Restitution of Conjugal Rights Petition can be filed by husband or wife before the District family court.

HOW TO DETERMINE THE JURISDICTION?

The following are some procedures for determining jurisdiction:-Marriage location, Where did husband/wife last live, the present address of the girl/wife ( parental home), Where the Husband/Wife resided together(at any place).

BURDEN OF PROOF

The Petitioner bears the burden of proof. The Petitioner must show why the Respondent abandoned him or her. Then, Respondent must then provide a fair explanation for why he or she left. In the instance of P. Rajeshkumar Bagmar v. Swathi Rajeshkumar Bagmar, this was also ruled out.

IN RESTITUTION OF CONJUGAL RIGHTS PROCEEDINGS, CAN A WIFE ASK FOR MAINTENANCE?

Section -9 of the Hindu Marriage Act, 1955 not only restores conjugal rights but also allows the petitioner to claim maintenance under Section -25 of the Hindu Marriage Act,1955. It is important to note that maintenance under these rules may be requested even if the maintenance activity is still in progress. As a result, a wife who does not want her marriage to be disrupted might obtain maintenance from her husband through these rules, even though the marriage is not dissolving.

DOCUMENTS REQUIRED FOR DRAFTING SECTION-9 PETITION

A marriage certificate or other evidence of marriage, such as photographs; Petitioner’s and Respondent’s address proof; Identificationproof; Photographs of the petitioner; Other Territorial Jurisdiction-Related Documents.

CONSTITUTIONAL VALIDITY OF SECTION -9

In the 19th century, India accepted British common law’s remedy of recovery of conjugal rights. Wives were regarded as the property of their husbands at the time. In 1947, an enactment in the United Kingdom banned the same remedy. The right to restitution of constitutional rights has been disputed countless times since then. The court ruled in T. Sareetha v. T.V. Subbaiah, AIR 1983 AP356, that section- 9 of the Constitution violates article 21. The most severe breach, Section- 9, was found to be unlawful. The woman had challenged the decree issued to the husband by the lower court in Harvinder Kaur v. Harmander Singh, AIR 1984 Delhi 66, and the court concluded that section -9 was constitutionally legitimate, dismissing the appeal. In essence, the two cases were opposed to the question of section -9 validity. Hence, following the decisions in both of the aforementioned cases, the Supreme Court found that section- 9 is constitutional in the case of Saroj Rani v. Sudarshan Kumar, 1984 AIR 1562 in which the petitioner sought restitution after being expelled from her home. Furthermore, the court ruled that the goal of this clause is to encourage husband and wife to live together and peacefully resolve their disagreements.

CONCLUSION

At the last, Petition of Section -9 is neither complaint nor a case. It is the petition and beneficial remedy to save the marriage. The parties must, however, make the final decision on whether or not to follow the order and continue their marriage. In addition to this, for filing the suit there must be a relation among two parties because the petition can not be filed against any other family member of the respondent.

Author(s) Name: Gaganpreet Kaur Gill (Chandigarh University, Mohali, Punjab)

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