The subsistence of a valid marriage under the Hindu Marriage Act, 1955 are as follows:
The remedy under this section presupposes the subsistence of a valid marriage. Thus, where the parties are not legally married or the marriage was not subsisting at the time of petition, the question of granting of decree of restitution of conjugal rights does not arise. It is for the petitioner to prove the validity of the marriage if it is disputed by the respondent.
Image Source: i.ytimg.com
ADVERTISEMENTS:
In Smt. Ranjana Viuod Kumar Kejrmal v. Vinod Kumar Kejriwal, a petition for restitution of conjugal rights was filed by the wife who had admittedly married a husband who was already married to some other lady. In fact, the marriage with her was contracted after suppressing the fact of previous marriage.
But the Court refused to grant a decree of restitution in favour of the wife as the lady who moved to the Court for relief was not a legally wedded wife, in view of the fact that the husband was already married to another woman, prior to this marriage.
In Damodar v. Urmila, it has been observed that the Act does not make any provision for the grant of relief to a spouse interested in getting a declaration that he or she has already obtained dissolution of marriage according to custom or usage from community Panchayat and the said dissolution is valid and binding on the two spouses.
The Act does not make any provision for adjudication of a claim of defence, that the marriage between the contending parties already stands dissolved by virtue of the decision of a private forum like the Panchayat of the tribe, community or family, as the case may be. But the J. & K. High Court has, however, held that “non-existence of a marriage pleaded on its non-performance or any other legal ground definitely a defence open to a party in a petition under Section 9 and a matrimonial court can, and indeed is bound, to entertain it and mould its decree or order in accordance with its adjudications on it.”
ADVERTISEMENTS:
In Malkiat Singh v. Shinderpal Kaur it has been observed that the sole essence of a decree of restitution of conjugal rights is that the husband desiring the company of his wife makes an effort through the court for its assistance in order to restore his wife back to him so that they may be able to lead a conjugal life. This provision of law cannot be allowed to be misused by a spouse to obtain a decree for divorce by invoking the provisions of Section 13(l-A) (ii) of the Act by deliberately keeping the decree for restitution of conjugal rights as unsatisfied.
In the instant case, the husband could not satisfy the court about his sincerity to allow the respondent to resume her matrimonial duties. Once it is found by the trial court that the appellant was at wrong as he deliberately did not allow the respondent to resume her matrimonial duties, the appellant cannot be allowed to take the benefit of his wrong.
In Soltan Lai v. Smt. Pratibha Mehra, it has been observed that where restitution of conjugal rights between parties to marriage for period of one year and respondent did not honour the decree passed under Section 9 of Hindu Marriage Act, and since there had been no restitution of conjugal rights between parties for period of one year. After passing of decree for restitution of conjugal rights, the husband was entitled to divorce under Section 13(1-A) of the Act.
Withdrawal from Society:
The expression withdrawal from society means withdrawing from the company of the other spouse and from conjugal relationship. A duty is imposed upon the spouses to provide each other those amenities which the marital tie renders obligatory.
ADVERTISEMENTS:
A husband and wife, though living separately, could maintain a frequent and regular social and sexual relationship thereby treating the marriage as still being in real existence. In such a case there would be no withdrawal from society. However, on the other hand, there may be withdrawal from society whilst the parties are living under the same roof.
In Leela Slwrrna v. Kesltav Sharma, the court observed that temporary leaving of a spouse would not amount to withdrawal from society within the meaning of the section. Withdrawal from the society is a mental process apart from physical separation. The mental process should show that the spouse complained against should have made up his or her mind not to discharge his or her marital obligations without there being any excuse there for.
Previous Cohabitation Not Necessary:
Granting of this remedy does not necessitate the parties to prove that they have at some time cohabited with each other and then separated; in other words previous cohabitation is not a condition precedent to the commencement of such proceedings.
Agreement of Separation:
An agreement made between a husband and wife after marriage for living separately is not necessarily illegal or void as being against public policy. But an agreement to live separately made prior to marriage even if confirmed after marriage being against public policy, is void and cannot be a defence to a claim for restitution. Similarly, an agreement for future separation even if made after marriage, being against public policy, is void.
This is necessary for the petitioner to specifically allege in the petition that the respondent has withdrawn from his society without any reasonable and probable cause. The truth of the statement in the petition must be to the satisfaction of the court. The petitioner has to ex facie show that there is no legal ground why the petition should not be allowed in view of the truthfulness of the statement made in the petition.
Reasonable and Just Cause:
What is reasonable or just would be decided in the context of facts and circumstances of each case; no strait-jacket yardstick can be formulated for ascertaining reasonable or just grounds. The reason for withdrawal from the society must be “grave and weighty” or as it is sometimes said grave and convincing and it may be distinct from a matrimonial offence. Conduct short of actual matrimonial offence like cruelty and adultery may be sufficient to prove a reasonable excuse within the meaning of this section, but the necessary conduct must be of grave and convincing character.