Restitution of conjugal rights

1[* * *1 When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

2[Explanation. Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

3[* * *]

Comments

The burden to prove that withdrawal from the society of the spouse is on that spouse who withdraws from the society and refuses to discharge his/her marital obligations. If the husband or wife refuse to discharge their matrimonial obligations, they have to lead strong evidence in support of their refusal to discharge their obligations. lie refusal to discharge obligations can be said to be reasonable or justified only when it is impossible for one of them to live with the other. Held that the withdrawal by the wife from the society of husband was unjustified and unreasonable as there was no demand for dowry and there was no possibility of maltreatment by the husband; Deepa Suyal V. Dinesh Chandra Suyal, AIR 1993 All 244.

Cruelty is a ground for divorce also and cruelty can be offered as a defence in a suit for restitution of conjugal rights. The allegations made by the wife that the husband is a drunkard and indulges in gambling is a feeble attempt made by the wife to show cruelty as a defence for restitution of conjugal rights; Pushpa Rani V. Vijay Pal Singh, AIR 1994 All 216.

1. 4[ Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

2. Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, oil the application by petition of either party and oil being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Comments

In order to get a judicial separation it is necessary to obtain a decree and then alone it would be recognized as judicial separation. Judicially separated wife cannot be given a meaning to include a wife, merely living separately and who has not obtained a decree for judicial separation; Darshan Prashad V. Civil Judge, Gorakhpur, AIR 1992 SC 967.

1. The brackets and figure "(])" omitted by Act 68 of 1976, see. 3.

2. Ins. by Act 68 of 1976, see. 3.

3. Sub-section (2) omitted by Act 68 of 1976, see. 3.

4. Subs. by Act 68 of 1976, see. 4, for sub-section (1)