1
DRAFTING, PLEADING AND CONVEYANCING PROJECT
on
Notice in a recovery suit
Submitted to
Mrs. Neha Sinha
Faculty, DPC
Submitted by
Amitesh Tirkey
Semester VIII
Section C
Roll No. 25
(B.A. L.L.B.)
Submitted on
February 15, 2017
HIDAYATULLAH NATIONAL LAW UNIVERSITY,
RAIPUR (C.G.)
2
Declaration
I, Amitesh tirkey, of Semester VIII, Section C, declare that this project submitted to H.N.L.U.,
Raipur is an original work done by me under the able guidance of Mrs. Neha Sinha, Faculty of
DPC. The work is a bona fide creation done by me. Due references in terms of footnotes have
been given wherever necessary.
Amitesh Tirkey
Roll No. 25
Section C, Semester VIII
3
Acknowledgements
I feel highly elated to work on the project Plaint on Restitution of Conjugal Rights. The
practical realisation of the project has obligated the assistance of many persons. Firstly I express
my deepest gratitude towards Mrs. Neha Sinha, Faculty of DPC, to provide me with the
opportunity to work on this project. Her able guidance and supervision were of extreme help in
understanding and carrying out the nuances of this project.
I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.
Some printing errors might have crept in which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project.
Amitesh Tirkey
Roll No. 25
Section C, Semester VIII
4
Contents
1. Declaration ii
2. Acknowledgements iii
3. Research Methodology v
3.1 Objectives v
3.2 Methodology v
3.3 Mode of Citation v
3.4 Chapterisation v
3.5 Scope of the Study vi
4. Restitution of Conjugal Rights 1
5. Plaint of Restitution of Conjugal Rights 5
6. Conclusion 8
7. Bibliography 9
5
Research Methodology
OBJECTIVES
To understand the concept of Restitution of Conjugal Rights given under Section 9 of
Hindu Marriage Act.
To discuss the Constitutional validity of Restitution of Conjugal Rights given under
Section 9 of Hindu Marriage Act.
To prepare a draft plaint/petition of Restitution of Conjugal Rights.
METHODOLOGY
This project is theoretical, descriptive and analytical in nature. The type of the data used is
secondary. Accumulation of the information on the topic includes wide use of primary sources
such as cases as well as secondary sources like books, e-articles etc. The matter from these
sources have been compiled and analysed to understand the concept.
Websites, dictionaries and articles have also been referred.
The structure of the project, as instructed by the Faculty of Drafting, Pleading and Conveyancing
has been adhered to and same has been helpful.
MODE OF CITATION
All the citations in the project follow the mode prescribed in the 19th Edition of Bluebook.
CHAPTERISATION
Chapter 1 starts with the introduction of Section 9 of the Hindu Marriage Act, 1955 and concept
of Restitution of Conjugal Rights along with its constitutional validity. Chapter 2 provides a
sample petition for Restitution of Conjugal Rights along with relief and verification. Chapter 3
concludes this project.
SCOPE OF THE STUDY
6
This project work has limited its scope only to the provision of Restitution of Conjugal Rights as
given under Section 9 of the Hindu Marriage Act, 1955. Because of time constraints the project
does not delve into provisions of Restitution of Conjugal Rights given under various other
personal or civil or matrimonial laws.
1
Restitution of Conjugal Rights
Concept:
Restitution of Conjugal Rights is a remedy, which basically means restoration or reinstatement of
ones marital rights or privileges (like, comfort and consortium of one another) which the
marriage or the marital bond entitles him to. There is a uniform provision regarding Restitution
of Conjugal Rights in all of the personal laws.
Section 9 of the Hindu Marriage Act, 1955 makes this remedy available to the Hindus. The
section states that: 1
When either the husband or 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 a petition and that there is no legal ground
why the application shouldnt be granted, may decree restitution of conjugal
rights accordingly.
Explanation to Section 9 provides that 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.2
Thus, there are 4 necessary conditions laid down in this sub-section:
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.
There is no legal ground for refusing to grant application.
1 Section 9, Hindu Marriage Act, 1955.
2 Ibid.
2
Jurisdiction in plaint of Restitution of Conjugal Rights:
A petition for restitution of conjugal rights in respect of a Hindu marriage can be filed in the
Family Court (wherever it has been set up), and where Family Court has not been set up, it can
be filed in the District Court.3
Now, the issue as to in which city or area, such petition needs to be filed, is governed by the
provisions of Section 19 of the Hindu Marriage Act, 1955:
Section 19: Court to which petition shall be [Link] petition under this Act shall be
presented to the district court within the local limits of whose ordinary original civil jurisdiction
i. the marriage was solemnized, or
ii. the respondent, at the time of the presentation of the petition resides, or
iii. the parties to the marriage last resided together, or (iii-a) in case the wife is the petitioner,
where she is residing on the date of presentation of the petition, or
iv. the petitioner is residing at the time of the presentation of the petition, in a case where the
respondent is, at that time, residing outside the territories to which this Act extends, or
has not been heard of as being alive for a period of seven years or more by those persons
who would naturally have heard of him if he were alive.
Execution of the Decree:
In India, the Code of Civil Procedure (Order 21, Rules 32 and 33) has retained the attachment
of property. Thus, this remedy is backed by a financial coercion. Thus, if the decree is disobeyed
then the court has the power to attach the property of the judgement-debtor. The court also has
the authority to sell the attached property if the decree remains not obeyed for 6 months. It has
the authority even to exercise discretion in enforcing the financial sanction by attachment of
property or ordering to pay certain sum in instalments or make periodic payments. Hence, even
though the court is bound to issue a decree of restitution of conjugal rights, it is not bound to
enforce it through the financial sanction.
3 Section 19 of the Hindu Marriage Act, 1955.
3
Though it is the only positive relief under the Hindu Marriage Act, 1955 aiming at preserving
and affirming marriage but with changing times, the concept of marriage has suffered distinctive
changes and several negatives are propping up of this remedy. This puts a question mark to its
validity and viability in the present scenario.
Constitutional Validity of Restitution of Conjugal Rights:
T Sareetha v. Venkata Subbaiah:4
The question of constitutional validity of section 9 of Hindu Marriage Act, 1955, for the first
time arose in this case. It was held that the remedy of restitution of conjugal rights is violation of
Articles 14, 19 and 21 of the Constitution of India. Justice Choudhary of the A.P High Court
termed the remedy as savage, uncivilised, barbarous, engine of oppression. He said
that the remedy was tiled towards the husband and through this decree the husband gets a right,
not only to the company of the wife but also to have sexual intercourse with her. Hence, he
termed this remedy as the grossest form of violation of human liberty and cessation of human
choice.
Here, the court observed that a person gets access to ones body to be used as a vehicle for
procreation of another human being5. Therefore, the A.P. High Court observed that it is a
savage and barbarous remedy violating the right to privacy and human dignity guaranteed by
Article 21 of the Constitution, hence void.
Sexual cohabitation is enforced through this remedy against an individuals choice violating
article 19 which talks about freedom of expression. As to being violative of Article 14 of the
Constitution, i.e, right to equality, the court held that though it does not make any discrimination
between husband and wife, but bare equality of treatment regardless of inequalities of realities
is neither justice nor homage to the constitution principle6
4 T Sareetha, AIR 1983 AP 356.
5 Ibid at 365.
4
Harvinder Kaur v. Harmandar Singh:7
The Delhi High Court upheld the constitutionality of Section 9, soon after the T Sareetha case.
Justice A.B. Rohtagi held, it is to take the grossest view of the remedy to say that it subjects a
person by the long arm of the law to a positive sex act 8. It was observed, that this remedy is
equally available to both the spouses and purports to preserve marriage, rebuild a broken home
and re-establish the two-in-one relation between the estranged spouses.
According to Justice Avadh Behari, the restitution decree acts as an index of connubial felicity. It
is sort of a litmus paper. If the decree remains disobeyed for a period of one year, it shows that
the relationship has reached a stage of no-return and becomes a ground for divorce. It offers a
cooling off period to the estranged spouses. Hence it doesnt enforce any sexual act in any way.
Therefore, it doesnt violate any provision of the constitution.
Saroj Rani v. Sudarshan Kumar Chadha:9
The Supreme Court upheld the decision of the Delhi High Court. In this case, it was observed
that: The right of the husband or the wife to the society of the other spouse is not merely a
creature of the statute. Such a right is inherent in the very institution of marriage itselfThere
are sufficient safeguards in section 9 to prevent it from being a tyranny.10 It was remarked, It
serves a social purpose and as an aid to prevent the break-up of marriage11
It was observed that the remedy gives the husband and the wife an opportunity to amicably
resolve their differences and live together. It serves a social purpose and as an aid to restore the
6 Ibid at 368.
7 Harvinder Kaur, AIR 1984 Del. 66.
8 Ibid para 15.
9 Saroj Rani, AIR 1984 SC 1562.
10 Ibid at para 14.
11 Ibid at para 16.
5
marital tie. It was submitted that no spouse could obtain the decree merely by filing a petition. If
the court sees that the withdrawing spouse had a reasonable excuse for his/her withdrawal, then
the decree is refused. The provision of reasonable excuse, for withdrawal is built in
safeguard against the misuse of section 9. Thus, this section is not violating any
Constitutional provision.
Plaint for Restitution of Conjugal
Rights:
In the Court of Family Court Jaipur , Jaipur
Matrimonial Case No. _______ of 2017
Sudarshan Kumar, aged about 32 years,
Son of Shri Ravi Kumar,
Resident of 32 Raja Park, Jaipur Petitioner
Versus
Saroj Rani, aged about 29 years,
Daughter of Shri Deepak Kumar,
Resident of 20, Malviya Nagar, Jaipur Respondent
Petition under Section 9 of the Hindu Marriage Act, 1955.
The petitioner respectfully submits as under:
6
1. That marriage of the petitioner and the respondent was solemnized on October 24, 2013,
at Uniara Gardens, Jaipur, according to Hindu rites and ceremonies. Marriage stands
registered with the Registrar of Marriages. Certificate copy of extract of from the
concerned register is enclosed herewith.
2. That from this marriage the couple has not been blessed with any child so far.
3. That the petitioner and his wife lived last together till October 9, 2016 at the residence of
petitioner at 32, Raja Park, Jaipur.
4. That on October 9, 2016, the respondent went to her fathers house at 20, Malviya Nagar,
Jaipur. She gave word to return within 15 days, but she did not abide by her word and has
not returned so far.
5. That the petitioner went to his father-in-laws house at 20, Malviya Nagar, Jaipur, to bring
the respondent, a number of times, but on one pretext or the other, she declined to come
along with the petitioner to his house.
6. That lastly the petitioner went to the house of the respondents father at 20, Malviya
Nagar, Jaipur, on January 14, 2017, and asked the respondent to return with him, but she
refused to come.
7. That the respondent deserted the petitioner or/and has withdrawn from his company
without any reasonable or lawful excuse. Hence the necessity for the petition arose.
8. That the cause of action arose to the petitioner against the respondent, within the
jurisdiction of this Court, on October 9, 2016, when the respondent left for her fathers
house at 20, Malviya Nagar, Jaipur, and it continues to accrue from day to day till the
respondent comes back to the home of the petitioner and resumes his company.
9. That this honourable Family Court at Jaipur has jurisdiction to adjudge this petition since
the marriage was solemnized at Jaipur, the parties last resided at Jaipur and the
respondent resides in Jaipur.
Jaipur, Sudarshan
February 15, 2017 Sudarshan Kumar
(Petitioner)
7
Relief
That the petitioner claims and prays:
a) That a decree for the restitution of conjugal rights be passed in favour of the petitioner
against the respondent.
b) Any other relief or reliefs which the court may deem proper under the circumstances be
also awarded to the petitioner.
Abhinav
Sudarshan
Abhinav Surollia Sudarshan Kumar
(Advocate) (Petitioner)
Verification
I, Sudarshan Kumar Son of Shri Ravi Kumar, do hereby verify that the contents of this petition in
paragraphs 1 to 6 are true to my personal knowledge and those in paragraphs 7 to 9 are believed
by me to be true.
Jaipur, Sudarshan
February 15, 2017 Sudarshan Kumar
(Petitioner)
8
Conclusion
Restitution of Conjugal Rights is a concept, which had great significance at the time, when it had
evolved. But, with the changing times and changing social scenario it has lost its significance.
Though this remedy is based on a noble cause, its consequences are far more detrimental and fail
to bring about the desired effect in most of the cases, statistically. The instances of its misuse are
increasing rapidly and its redundancy too.
It may be stated that the grounds and arguments against Restitution of Conjugal Rights are
baseless and they do not sufficiently prove that the Remedy of Restitution of Conjugal Rights is
archaic, barbarous and violating of the basic Human Rights. It cannot be said that this remedy is
unconstitutional. Section 9 has sufficient safeguards to prevent the marriage from being a
tyranny. In truth, it serves the social good purpose, by promoting reconciliation between the
parties and maintenance of matrimonial. It protects the society from denigrating. And all the
years that it has been enforced it has efficiently played its role.
9
Bibliography
Books:
1. A.B. Kafaltiya, Textbook on Pleadings, Drafting & Conveyancing, Universal Law Pub
Co. Pvt. Ltd, Delhi (2012).
2. S.P. Aggarwal, Pleadings : An Essential Guide, LexisNexis, Nagpur, Ed. 2 (2013).
3. Dr. Paras Diwan, Family Law, Allahabad Law Agency; 9th edition (2012).
