Remedy for Husband /Wife -withdrawal from society -Restitution of Conjugal rights

                                                                                                                                                             

Remedy for Husband /Wife -withdrawal from society -Restitution of Conjugal rights
Marriage imposes an obligation on both the spouses to cohabit with each other. The necessary implication of marriage is that parties will live together. Marriage implies `consortium' i.e. husband and wife are entitled to each other's company and comfort. Restitution of Conjugal rights means that if one of the parties to marriage withdraws from the society of the other, latter is entitled to compel the former to live together.

Section 9 of the Hindu Marriage Act provides that when either husband or wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to District Court, for restitution of conjugal rights and courts on being satisfied of truth of the statement 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.

In Surinder v. Gurdeep, AIR 1973 P&H 134 it was held that for decree of Restitution of Conjugal rights, three conditions must be satisfied i.e. (i) respondent has withdrawn from the society of petitioner without reasonable excuse (ii) the court is satisfied about the truth of the statement made in such petition (iii) there is no legal ground why the relief should not be granted.

So petitioner must satisfy that respondent has withdrawn from the society without "reasonable excuse." What amounts to "withdrawal of society without any reasonable cause or excuse", can not precisely be defined. Explanation to Section 9 only says that where a question arises whether there has been reasonable excuse for the withdrawal from the society the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Coming now to question as to whether refusal of wife to resign from her job does amount to withdrawal of society without reasonable cause. Full Bench of Punjab and Haryana High Court in Kailashwati v. Ajudhaya Prasad 1977 H.L.R. 175 held that "obligation to live together under common roof is inherent in the concept of Hindu Marriage and it can not be torn unilaterally by the desire of wife to live separately and away from matrimonial home merely for reason of either securing or holding the job else where."

However, Allahabd High Court in Shanti v. Romesh reported in 1971 Allahabad Law Journal 67 has held that mere refusal of wife to resign her job at the instance of husband is not sufficient ground for granting decree of restitution in favour of husband as wife's taking up of job even against the wishes of husband would not amount to withdrawing from society without reasonable excuse. Similarly Rajasthan High Court in Mirchumal v. Devi, AIR 1977 Raj. 114 has observed that proposition that wife must always stay under the roof of the husband might be right in past but it is no longer true in the age of equality of opportunity in employment to both sexes. So wife's taking up of job or not giving it up at the instance of the husband can not amount to withdrawal from his society. Reference may also be made Swaraj Garg v. K.M.Garg, AIR 1978 Del. 296 and Pravin Ben v. Suresh Bhai, AIR 1975 Guj. 69. So from the above discussion it can be stated that particular facts and circumstances of each case have to be taken into consideration for deciding the question as to whether refusal of wife to resign from her job, amounts to withdrawal from society without reasonable excuse for the purpose of Section 9 of the Act.