Marriage under Hindu law is a sacrament. The spouses live together till their death and they don't separate from each other. the Hindu principle that prevailed is “let me mutual fidelity continue until date”. however, under the Hindu Marriage Act 1955, judicial remedies or matrimonial relief have been provided to the parties to unhappy marriages. They are
- Restitution of Conjugal Right Section 9 of HMA (Hindu Marriage Act 1955)
- Judicial Separation( Section of Hindu Marriage Act 1955)
- Divorce( Section 13 of Hindu Marriage Act 1955)
- Nullity of Marriage that is void marriage( Section 11 of Hindu Marriage Act 1955)
- Voidable Marriage ( Section 12 of Hindu Marriage Act 1955)
Section 9 of Hindu Marriage Act 1955 states as when either the husband or wife has withdrawn from the society of other without any reasonable excuse, in other words if either husband or wife has left matrimonial home without any reasonable cause, the aggrieved party may apply petition of RCR(Restitution of Conjugal Right) before the family court, on being satisfied with the truth of the statement made in such petition and that there is no legal ground why the application should not be granted, may pass decree of restitution of conjugal right accordingly.
Explanation: If the husband has left his matrimonial house, the wife can file a petition of RCR to resume matrimonial life, similarly if the wife has left the matrimonial house then the husband can file a petition of RCR to resume matrimonial life.
But when the question arises whether there has been a reasonable excuse for withdrawal from society, the burden of proof of reasonable excuse shall be on the person who has withdrawn from society.
The Hindu law recognized the sacredness of the marriage tie. The wife was given an honored position in the house, as the woman is half her husband and completes him. Hindu law enjoyed on the spouse to have the society of each other. While the old Hindu Law stressed on the wife’s implicit obedience to her husband, it did not lay down any procedure for compelling her to return against her will.
After marriage, the bride becomes a member of the groom's family, and no question of going out of it arises. She feels and behaves as if she is part of her husband’s life. Petty differences or quarrels between spouses are settled with the interference of elders amicably and the question of disobeying her husband does not arise
The remedy of restitution of conjugal right was not recognized by the Dharmashastras. It came to India with British rule.
Restitution of Conjugal right is the hope of bringing nearer both the spouse and to avoid conflicts. it is a ray of hope. It is the last resort to establish amicable relations between them, sometimes conflicts may arise between spouses and force them to live separately due to that. The decree of restitution of Conjugal right may bring them together and get them united which is the object of matrimonial life.
Unless the withdrawal by one spouse from the society of other is founded on a reasonable excuse no decree can be passed under section 9 of the Act. The expression “reasonable excuse” is not defined in the Act.
What is reasonable or just would be decided in the context of facts and circumstances of each case, no shortcut formula can be formulated for ascertaining reasonable or just grounds. The reason for withdrawal from society must be grave and weighty and it may be distinct from a matrimonial offence.
The courts in their decisions have held the following amongst others to be valid grounds for separate living disentitling the other spouse to a decree for restitution of the conjugal right
- Marriage was not solemnized in accordance with the customary rites.
- guilty of physical and mental cruelty.
- guilty of persistent neglect of the respondent and continued to be indifferent towards the respondent.
- Husband was impotent towards the wife.
- Husband has another wife living.
- Husband was living with the widow of his brother.
- Her feelings are being outraged by husband by keeping a concubine in the house.
- Husband's false accusation of adultery or immorality.
- The petitioner is himself guilty of deserting the respondent.
- The petitioner has committed adultery.
- The false allegation against each other
- Refusal of marital intercourse without sufficient reason
- Compelling immortal practices
- Excessive drinking carried to such degree as to render it impossible for the duties of married life to continue or to discharge
- Extravagant of living on the part of wife affecting the financial position and prospect of the husband
- Misconduct bordering on cruelty but falling sort of it
- He has been suffering from some loathsome disease such as syphilis or leprosy
- Persistent demand of dowry
- Where two-person of the husband's family is suffering from tuberculosis and living in the same house, the wife refused to live there but agrees to live with the husband in a separate house
Her feelings are being outraged by the husband by keeping a concubine in the house
The petitioner and respondent’s marriage took place at a time when the petitioner was an idiot or lunatic
That the petitioner,(if a woman) was pregnant by someone else when the marriage was performed
Husband being totally blind
The consent of the respondent was obtained by fraud or force.
- There is an agreement between the parties to live separately, such an agreement, whether ante-nuptial or post nuptial is opposed to public policy.
- The husband did not come to fetch his wife.
- There is too much difference of age between the parties.
- The wife does not like the place of employment of the husband.
- The husband cannot provide the wife the comforts which she is being given by her parents in their home.
- The husband refuses to live with her in her parental place.
- The husband is not maintaining a high standard of living.
- The husband doubted the chastity of the wife, although there was no piece of evidence to prove it.
- Development of insanity after marriage which does not give rise to a reasonable apprehension of violence
- Her unhappiness owing to the presence of her husband's relation in the house
- Refusal of husband to allow her to frequently visit her own people
- The infidelity or the second marriage of husband
- Husband's ugliness or penury or unorthodox life
- Impossible owing to her physical defect
- Where the husband does not agree to live separately from his parents and wife's insistence for a separate home persists as a result of which she choose to stay from husband
- The respondent has withdrawn from the society of the petitioner
- The withdrawal by the respondent party is without a reasonable excuse.
- The court is satisfied that the statements made in the petition are true.