section 9 of HMA
ABC.......
(Querist) 01 September 2009
This query is : Resolved
A wife has been harassed by her husband and in-laws and came back to her parental home. After some time husband has filed a petition u/s 9 of Hindu marriage act for restitution of conjugal rights. Wife without knowing about this petition filed compliant in women cell for dowry harassment. However at the time of reconciliation, he placed conditions which cannot be fulfilled by wife like wife should not do any job or wife should bring back jewellery,items etc worth 15 lacs which she has taken from their home(although she does not have any).
1) What do you think husband is trying to do?
2) Is he trying to make any ground for divorce?
3) What should wife do in order to avoid such conditions if she wants reconciliation?
Please explain in detail.
A V Vishal
(Expert) 01 September 2009
There is a very popular proverb that one can take the horse to a water tank, but you cannot force him to drink water. The provision of Restitution of Conjugal Rights in the Hindu Marriage Act seems to be a similar one. After solemnisation of marriage under the Act if one of the spouse abandons the other without reasonable excuse, the aggrieved party has a legal right under section 9 of the Hindu Marriage Act, 1955 to file a petition in the matrimonial court for restitution of conjugal rights.
Section 9 of the Hindu Marriage Act, 1955 reads as follows:-
"When either the husband or the wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply, by a petition to the district court, for restitution of conjugal rights and the court, on being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".
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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
If, after hearing the petition of the aggrieved party, the court comes to this conclusion that the grounds made out in the petition are genuine and have satisfactorily been proved, the court in that case would pass a decree of restitution of conjugal rights.
The execution of the decree of restitution of conjugal rights is very difficult. The court though is competent to pass a decree of restitution of conjugal rights, but it is powerless to have its specific performance by any provision of law. Of course, the non-compliance of the said decree amounts to constructive desertion on the part of the erring party. As per provisions of the present Act, the aggrieved party can move a petition for a decree of divorce after a period of one year from the date of the passing of the decree and the competent court is fully authorized to pass a decree of divorce in favour of the aggrieved party.
But under no circumstances the court can force the erring party to consummate marriage. Another advantage is that the aggrieved wife can have from this provision is that she can claim maintenance from the husband.
The only merit here is that one year's non-compliance of the decree can lead to divorce. This is hardly a merit of the decree of restitution of conjugal rights.
Sarvesh Kumar Sharma Advocate
(Expert) 01 September 2009
geetika ji,
in yr first line u mantion dt "harassed by her husband"
d first queries answer is dt d husband is againg trying to harass.
taking divorce from any court is not so easy, don't wory .
face sec.9 and say clearly dt wife r facing harrasment with her husband and wife has also filed criminal case again hus.
Sarvesh Kumar Sharma Advocate
(Expert) 01 September 2009
geetika ji,
in yr first line u mantion dt "harassed by her husband"
d first queries answer is dt d husband is againg trying to harass.
taking divorce from any court is not so easy, don't wory .
face sec.9 and say clearly dt wife r facing harrasment with her husband and wife has also filed criminal case again hus.
Sarvesh Kumar Sharma Advocate
(Expert) 01 September 2009
geetika ji,
in yr first line u mantion dt "harassed by her husband"
d first queries answer is dt d husband is againg trying to harass.
taking divorce from any court is not so easy, don't wory .
face sec.9 and say clearly dt wife r facing harrasment with her husband and wife has also filed criminal case again hus.
Jayashree Hariharan
(Expert) 01 September 2009
Pls tell her not to bother about the S9 petition. Let her face it. No one can force someone to lead a marital life, when faced with such atrocities, let her tell the judge. lawyer will take care of that. Let her carry on with the dowry harrassment case. If he feels she has taken such jewellery, let him prove that she has it. don't worry. He is trying to harrass her as much as possible, so that she will get scared and go back to him. File a Domestic Violence case also against him and in-laws.
Pray to God.
Best wishes.
Jayashree Hariharan
(Expert) 01 September 2009
Pls tell her not to bother about the S9 petition. Let her face it. No one can force someone to lead a marital life, when faced with such atrocities, let her tell the judge. lawyer will take care of that. Let her carry on with the dowry harrassment case. If he feels she has taken such jewellery, let him prove that she has it. don't worry. He is trying to harrass her as much as possible, so that she will get scared and go back to him. File a Domestic Violence case also against him and in-laws.
Pray to God.
Best wishes.
A. A. JOSE
(Expert) 01 September 2009
While as a matter of routine,Lawyers may be tempted to advise to seek divorce and ruin the marriage life, it is entirely a matter to be deeply considered by the wife as to whether she is interested to continue with the married life with her husband or not. There cannot be any two opinion that no one has any right to force anyone to lead a marital life, and it is for the parties concerned to decide about their future family life as husband and wife. One should at the same time be well prepared to have some sacrifices at the sake of saving the family life. If the wife has really taken her jewellary,etc., it is but natural for her to bring back the same as and when she decides to return to her husband's house and I do not think that this is a big issue. Similarly, if the husband is capable of managing the house without the need for his wife to go for job, perhaps, wife may ponder over the issue and weigh the merits and demerits of her resistence to the same. In short, all these issues are not such an alarming which needs to be dragged into the court of law, but the parties concerned must find ways for amicable resolution, if there is scope for one per cent chance for saving their family life.
With best wishes,
