Section 9: “When either the husband or the wife has, without reasonable excuse, withdrawn from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.”

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withdrawn from the society.

For sec 9 to be attracted, the elements/conditions must be satisfied:

1. The respondent has withdrawn from the society of the petitioner

“Withdrawal from society” implies non performance of martial obligations. Living together is a
symbol of sharing of such obligations in all its aspects. However, it is not confined to physically
removing oneself from the company of another or his/her roof. In the case of Powell v. Powell
the Privy Council held that “withdrawal” entailed both physical and/or mental separation. This
means that there should an intention to withdraw followed by actual withdrawal.

2. without reasonable excuse.

What constitutes a reasonable excuse varies from case to case. But majorly, tow things have to
be considered:

 If there exists a ground on which the respondent can claim any matrimonial relief (eg-
Adultery or Sapinda relationship)
 If the petitioner is guilty of any matrimonial misconduct or any act which makes it
impossible for the respondent to live with, not amounting to grounds for matrimonial
relief, yet sufficiently weighty and grave.

Relevant case laws related to “reasonable excuse” (cringe alert)

a. Mohinder Singh v Preet Kaur 1981 HLR 321 (P&H)

Facts: Man enters into marriage with a woman and becomes blind six months later due to a
violent struggle with his brother. The wife leaves his house and the husband files a petition
seeking restitution of conjugal rights.

Held: The Court ruled in favour of the wife because the purpose of a conjugal relationship was to
provide happiness, and not misery. Wife should not e forced to stay in the company of a blind,
unprotected man.

Reasonable: Yes
 b. Tirath Kaur v. Kirpal Singh 1964

Facts: The financial position of the husband was not satisfactory. He started pressing wife to
take some training and join service. She came to her parental home and prevailed upon her father
to arrange for training for her in the Diploma Course. She joined a school and was successful in
obtaining a Diploma in tailoring. After completing her course she went to the husband and
started living with him and even while she was doing her course, she used to visit him. She then
joined as a teacher in the tailoring school at the instance of the husband where she served for
about a month. Later on, she got a job with a better salary under the Block Development Officer,
Una. She moved there and husband filed a suit for restoration of conjugal rights

Held: Relying on Mulla, it was held that the wife’s primary duty is to her husband – to live under
his roof and protection. Thus, her act of withdrawing from his company was not reasonable.

Reasonable: No

c. Kailashwati v. Ayodhya Prakash 1977

Facts: Wife and husband had teaching jobs in different places but wife got transferred to his
place. Later, in pursuance of a request she had put in earlier, she was transferred back to her
original place of work. The husband demanded that she resign her job and return to stay with
him. The wife agreed to meet her husband if he wanted to visit her, but she refused to resign
from her job. The husband filed a suit under Sec 9

Held: The Court had to consider the concept of a “matrimonial home”. The MH was considered
to be the home of the husband since he was supposed to be the chief breadwinner of the family.
The exception to that was (a) the husband did not have bona fide intention; (b) the husband is
unable to maintain his family.

In this case, the working woman had come to live in the “matrimonial home” and thus impliedly
consented to living with her husband. Since the husband was to be regarded as the breadwinner,
the wife should leave his job and move back with her husband to uphold her martial obligations.

Reasonable: No.

d. Durgaprasad Rao v Sudarsanaswami 1940

Facts: The wife and husband both had jobs but the wife was earning considerably more than the
husband but they stayed separately—the husband wanted her to move back to Delhi with him

Held: Due to the financial difficulties of the husband and comfortable position of the wife and
also due to the discouraging conduct of the husband towards the wife, the Court held that the
wife had a reasonable excuse for not resigning her job and for not coming to live with the
husband at Delhi.
Taking the discussion on “matrimonial home” further, the Court in this case found that the
husband and wife had not been able to decide where their matrimonial home would be. The
Court held that the fault, if any, for the lack of any agreement between them on this point was
not of the wife and may be said to be of the husband. Thus, the husband had failed to establish
the grounds for restitution and the suit failed.

e. Vuyyuru Pothuraju v Radha 1965

Facts: Husband and wife had entered into a pre-nuptial agreement to live in the home of the
foster father of the wife. Due to frequent disagreements between the family members of the wife
and the husband, the husband went back to his house and asked that his wife join him there. The
wife refused to do so in lieu of the pre-nuptial agreement

Held: 1. The pre-nuptial agreement is violative of Hindu law and public policy, therefore, not
enforceable.

[Subsequently in 1968, the Madras HC in A.E. Thirummal v. Rajammal also ruled that contracts
requiring the husband and wife to live separately, post or pre nuptial were invalid but present
contracts were valid]

2. the agreement, even if proven, does not take away the husband’s right to demand that his wife
live with him wherever he chooses to reside.

2. The court is satisfied about the truth of the statement made in such petition.

3. There is no legal ground why the relief should not be granted.

CONSTITUTIONAL VALIDITY OF SECTION 9

a. T. Sareetha v. T Venkatta Subbiah (AP HC)

Facts: In this case, the husband brought a suit against the wife, a famous actress, for leaving their
home. It was contested before the Court that Section violated Articles 14 and 21.

Held: Justice PA Choudhary termed the provision as ‘uncivilized’, ‘barbarous’, engine of

b. Harvinder Kaur v. Harmindar Singh (del HC)

The essence of marriage is cohabitation and “the court cannot enforce sexual intercourse but only
cohabitation, and restitution of conjugal rights cannot be ordered where the respondent refuses
sexual intercourse but continues to cohabit with the petitioner.”

c. Saroj Rani v Sudarshan Kumar (SC)

Facts: The wife-appellant filed a suit against the husband- respondent under Section 9 of the
Hindu Marriage Act 1955, for restitution of conjugal rights. Though the respondent
contested the petition contending that he had neither turned the appellant out from his house nor
withdrawn from her society later as he made a statement in the Court that the application under
Section 9 be granted; a consent decree was passed by the Sub-Judge for the restitution of
conjugal rights between the parties.
After a lapse of a year, the respondent-husband filed a petition under Section 13 of the Act
against the appellant for divorce on the ground that though one year had lapsed from the date
of passing the decree for restitution of conjugal rights no actual co-habitation had taken place
between the parties. The appellant filed her reply contending that she was taken to the house
of the husband by her parents one month after the decree and that the husband kept her in the
house for two days and then she was again turned out.

Issues: 1. Would a decree for restitution of conjugal rights passes with the consent of parties,
amount to collusion?

2. Can a husband seek divorce on ground of non-compliance of restitution decree

3. Would this amount to taking advantage of his own wrong? No

4. The constitutional validity of Section 9

Held: Issue 1. The consent decree cannot be said to be collusive in all cases and from the facts of
the case it was clear that there was no collusion. The wife petitioned against the husband on
certain allegations, the husband denied these allegations. He stated that he was willing to take the
wife back. A decree on that basis was passed.

Issue 3: rejected the contention of counsel for the appellant that the conduct of the husband
sought to be urged against him could possibly come within the expression 'his own wrongs'
in section 23(1) (a) of the Act so as to disentitle him to a decree for divorce to which he is
otherwise entitled to as held by the courts below. Further, we reach this conclusion without any
mental compunction because it is evident that for whatever be the reasons this marriage has
broken down and the parties can no longer live together as husband and wife, if such is the
situation it is better to close the chapter

Issue 4: Section 9 of the Act is not violative of Art 14 or 21 of the Constitution if the purpose o
the decree for restitution of conjugal rights in the said Act is understood in its proper perspective
and if the method of execution in cases of disobedience is kept in view. Overruled T Sareetha
and upheld Harvindar Kaur.