Hindu Law of Marriage and Divorce

Restitution of conjugal rights would be refused if the husband is guilty of mental cruelty. It is not necessary for there to be physical assault, violence, or torture. In a case where, six months after marriage, the husband became completely blind and the wife withdrew from his society, it was held that she had a reasonable excuse to withdraw. The husband's petition for restitution was refused.

Husband's impotency was held to be a reasonable excuse for a wife to withdraw from his society in the Jagdish Lal case.

Refusal on Other Grounds

The restitution of conjugal rights may not be granted even in the absence of a reasonable excuse on the part of the withdrawing party. There may be legal grounds that forbid the granting of this relief. Delay is one of those grounds.

In Satya Devi v. Sor Pal, the petition was refused because it was filed after an inordinate delay of eight years from the wife's departure from the matrimonial home.

In Surakanti Patel v. Gunanidhi Patel, however, the delay in filing the suit for restitution by the husband was held to be justified. The husband first approached his in-laws, then he approached the Panchayat twice, making efforts to bring her back. After failing in these attempts, he sent a notice and thereafter filed a suit. The court held that the delay in filing the suit was justified. Similarly, restitution may be refused on grounds of collusion or res judicata.

Burden of Proving Reasonable Excuse

The explanation to the section states that when the question arises as to whether there was a reasonable excuse for withdrawal from society, the burden of proving such an excuse lies on the respondent, who is the person that has withdrawn from society. When there is an earlier judgment in favor of the wife on the husband's petition for divorce on the grounds of desertion, stating that her withdrawal from society was proper, it does not matter that the burden of proof for withdrawal with reasonable excuse lies upon her in a restitution proceeding. The matter is settled by the earlier decision in Karbi Das @ Rupa v. Paritosh Das (2002, II DMC 730, CAL (DB)).

Appeal from an Ex Parte Decree

A Division Bench of the Allahabad High Court held in Boby Devi v. Kiran Pal Singh that if a suit filed under Section 9 of the Hindu Marriage Act for the restitution of conjugal rights is decreed ex parte by a Family Court, the aggrieved party is entitled to file an application to recall such an ex parte decree.
 

Relief Under Section 9 Presupposes Valid Marriage

Relief of restitution under this section presupposes a valid and subsisting marriage between the parties at the time of the application.

Thus, in Ranjana Kejriwal v. Vinod Kumar Kejriwal, where the petitioner admitted that her husband had suppressed the fact of his earlier subsisting marriage, the court held that the marriage was illegal, and therefore, her application for restitution of conjugal rights was not maintainable.

References:

• Mohinder Singh v. Preet Kaur, 1981 HLR 321 (J&K): AIR 1981 J&K 251: 1 (1981) DMC 354 (J&K)
• Jagdish Lal v. Smt. Shyama Madan, AIR 1966 All 1950
• (2002-3) CXXXII PLR 644 (P&H): AIR 2003 P&H 181
• AIR 2005 NOC 114 (Ori)
• Ushila Bai v. Prem Narayan, AIR 1986 MP 225: 1986 MPLJ 114: (1986) HLK 396
• Sree Valsan Pillai v. Thankamoni Amma, 987

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