Restitution of Conjugal Rights Under Section 9: Use and Misuse

What does section 9 of the Hindu Marriage Act actually say?

Section 9 says that when a husband or wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved spouse may petition the court for restitution of conjugal rights. If the court is satisfied that the statements in the petition are true and that there is no legal ground to refuse, it may pass a decree. In Delhi, the petition goes to the family court in the district court complex that has jurisdiction, because family courts took over these cases from the ordinary civil courts.

The Explanation to section 9, added in 1976, is the part that decides most cases. Where a question arises whether there was reasonable excuse for withdrawal, the burden of proving it lies on the spouse who withdrew. So the petitioner only has to show that the marriage exists and that the other spouse left. The spouse who left then has to explain why, with evidence, and the court weighs that explanation.

'Withdrawal from the society' means more than moving out. It means pulling away from the shared life of the marriage: living separately, refusing to come back, cutting off contact. A spouse who works in another city with the other's agreement has not withdrawn. A spouse who went to her parents' home for a festival and was then told not to return has not withdrawn either; she was excluded, which points the other way.

What counts as a reasonable excuse for living apart?

A reasonable excuse is a reason that would make it unfair to expect a spouse to return. The clearest cases are those where the conduct of the petitioner would itself be a ground for divorce or judicial separation: cruelty, a demand for dowry, physical violence, an adulterous relationship, or the petitioner having taken another spouse. If the spouse who left can prove any of these, the petition fails.

Courts also accept reasons that fall short of a divorce ground but still make return unreasonable. Persistent humiliation in the matrimonial home, threats, being locked out, the husband's refusal to provide any maintenance, or a real fear for safety have all been treated as reasonable excuses on the facts. The test is practical: would a sensible person in her or his position be expected to go back to that household?

Some reasons usually do not succeed on their own. A wish to live in a separate house away from the in-laws, without more, is often not enough, though it becomes relevant when combined with ill-treatment by them. A job in another city is weighed case by case, and courts have gone both ways depending on whether the couple had agreed to the arrangement and whether the petitioner offered to move. Vague claims of incompatibility, with nothing specific behind them, rarely carry the burden.

When is a section 9 petition a fair remedy?

Section 9 was designed for a marriage that has a chance. Take a young couple where the wife has gone to her parents after a quarrel, the families have stopped talking, and neither side is willing to make the first call. A restitution petition brings both into the family court, where the matter is almost always sent to the court's mediation centre first. A trained mediator and a neutral setting sometimes achieve what relatives could not.

It is also a fair remedy for a wife who has been turned out of the matrimonial home and wants to go back. Her petition records, early and on oath, that she did not leave and that she wants the marriage. Combined with an application for interim maintenance under section 24 of the Act, it gives her financial support during the case and protects her against a later allegation of desertion.

For a husband whose wife has been persuaded by others to stay away, a section 9 petition is the honest way to say, in a court, that he wants her back and is willing to provide a home. If he means it, he should be ready to show it: a proper residence, an offer of reasonable terms, and conduct during the case that matches what he says in the petition.

How is section 9 misused?

The most common misuse is the counterblast. A wife files for maintenance under section 144 of the BNSS or under the Domestic Violence Act, or lodges a complaint of cruelty, and within a few weeks the husband files a restitution petition. The point is not reunion. The point is to say, in the maintenance case, that she refuses to live with him without sufficient reason, which under section 144(4) can disentitle a wife from maintenance.

The second misuse is the slow route to divorce. A husband who has no ground for divorce files under section 9, obtains a decree, often ex parte because notice went to an address where the wife no longer lives, waits a year and then files for divorce under section 13(1A)(ii) on the ground that the decree was not obeyed. The restitution petition was never meant to restore anything; it was a way of manufacturing a divorce ground.

The third is forum. Filing first in the husband's city forces the wife to travel to defend the case. She can file her own cases where she lives, but the section 9 case will continue where it was filed unless she obtains a transfer, which for cases in different states means a transfer petition before the Supreme Court. Wives sometimes use section 9 tactically as well, most often to answer a husband's divorce petition with a claim that she always wanted to stay. Courts see all of these patterns regularly.

When Advocate B.K. Singh reads a restitution petition served on a client, the first thing he checks is the date of filing against the dates of the other side's cases. A section 9 petition filed shortly after a maintenance or domestic violence case, with no earlier letter, call or visit asking the spouse to come back, tells the court a great deal before a word of evidence is led.

Genuine or tactical: what the family court looks at

No single factor decides a section 9 case, but these are the signs that judges and mediators in Delhi's family courts tend to weigh when they decide whether a petitioner really wants the spouse back.

A petitioner can hold strong views about the other spouse and still sincerely want reunion. But a petition that accuses the spouse of serious misconduct in one paragraph and asks for her return in the next is treated with caution, and the cross-examination will usually bring that out.

How to file a restitution of conjugal rights petition in a Delhi family court

If you have decided that section 9 is the right remedy, and you mean it, this is the usual sequence in Delhi.

1. Try once more, in writing

   Before going to court, write to your spouse, or send a polite legal notice, inviting her or him to return and saying where you will live. Keep it free of accusations. A calm invitation that is ignored is strong evidence; an angry one is evidence against you.

2. Choose the right family court

   Under section 19 of the Hindu Marriage Act, you can file where the marriage was solemnised, where the respondent lives, or where you last lived together. In Delhi that decides which district court complex, such as Saket, Dwarka, Rohini or Karkardooma, hears the case.

3. Draft the petition and affidavit

   The petition sets out the marriage, the life together, when and how the spouse withdrew, your efforts to bring her or him back, and the home you offer. It is supported by an affidavit, and the marriage certificate or wedding photographs are filed with it.

4. File, pay court fee and get notice issued

   The petition is filed in the family court with a vakalatnama if you are represented. The court issues notice to the respondent at the correct current address. Giving a wrong address to obtain an ex parte decree is a serious mistake and can lead to the decree being set aside.

5. Attend mediation

   Delhi family courts refer most matrimonial cases to the mediation centre in the complex at the first or second hearing. Mediation in a section 9 case may lead to reunion on agreed terms, or to a mutual consent divorce if both sides accept the marriage is over.

6. Pleadings, interim applications and evidence

   If mediation fails, the respondent files a written statement, often with an application for interim maintenance under section 24. Evidence is then led by affidavit, followed by cross-examination, and the court hears final arguments before deciding.

Our post on mediation in divorce cases at Delhi family courts explains what happens in those sessions and how a settlement is recorded.

Documents to gather for a section 9 case

The documents differ depending on which side you are on. Collect originals and keep copies arranged by date.

I have received a section 9 notice. What should I do?

Do not ignore it. A section 9 petition that is not answered can end in an ex parte decree, and a year later that decree can be used to file for divorce under section 13(1A)(ii) and to argue against your maintenance claim. Note the date of the next hearing on the notice, arrange representation, and appear or be represented on that date.

Next, look at what else is pending. If you already have a maintenance case or a Domestic Violence Act application, the restitution petition has to be answered with those cases in mind, because what you say in one will be read in the others. A written statement that says 'I never want to see him again' may be honest, but it can be quoted against you in a maintenance hearing. It is usually better to state the facts: what happened, when you left or were sent away, and on what terms you would consider returning, if any.

Then decide your position. You may genuinely be willing to go back if certain things change, such as a separate residence or an end to violence or dowry demands. You may be certain the marriage is over. Either position is legitimate, but the reply, the section 24 application and any counter-claim should all tell the same story.

What responses does the respondent have?

The respondent in a section 9 case has more options than simply denying the petition.

• Prove a reasonable excuse. The written statement sets out the reasons for living apart, and evidence such as messages, medical records or complaints is filed to support them. The burden is on you, so specifics matter more than adjectives.
• Claim interim maintenance and litigation costs. Section 24 of the Hindu Marriage Act applies to any proceeding under the Act, including a section 9 petition. A spouse without sufficient independent income can claim monthly maintenance and the costs of the case from the other while it is pending.
• Make a counter-claim. Under section 23A, a respondent in a restitution case can oppose the petition on the ground of the petitioner's cruelty, adultery or desertion and also ask for relief on that ground, including divorce, in the same proceeding.
• Use the Domestic Violence Act where it applies. If there has been abuse, a separate application before the magistrate can bring protection, residence and monetary orders. Our post on protection, residence and monetary orders under the DV Act explains those remedies.
• Seek a transfer if the forum is unfair. If the case has been filed far from where you live and you cannot reasonably travel, you can ask for a transfer, within the state from the High Court or between states from the Supreme Court.
• Offer to return on reasonable terms. If you are willing to go back, saying so in writing, with the terms, often changes the case. A petitioner who filed for tactical reasons may then be the one who refuses.

Can the court force a spouse to come back?

No. A decree for restitution of conjugal rights cannot be enforced by sending police to bring a spouse back, and nobody can be arrested or jailed for refusing to obey it. Order 21 rule 32 of the Code of Civil Procedure deals with this directly. A decree for restitution, if wilfully disobeyed, can be enforced only by attachment of the property of the spouse who refuses. The same rule allows civil imprisonment for other kinds of decrees, but expressly not for restitution.

In practice, attachment for a restitution decree is rare in Delhi. Most decree-holders do not pursue execution at all, because they know it will not bring the spouse back and because attaching a wife's property while asking her to return looks exactly as bad as it sounds. The real consequences of a section 9 decree lie elsewhere: in the divorce ground it creates after a year, and in the arguments it supports in maintenance cases.

What happens if the decree is not obeyed for a year?

Section 13(1A)(ii) of the Hindu Marriage Act allows either party to seek divorce if there has been no restitution of conjugal rights between them for one year or more after a restitution decree in a case to which both were parties. The words 'either party' matter: the spouse who obtained the decree can file, and so can the spouse against whom it was passed. The Supreme Court upheld this in Saroj Rani v Sudarshan Kumar Chadha (1984).

The ground is not automatic. Section 23(1)(a) of the Act says the court must be satisfied that the petitioner is not taking advantage of his or her own wrong. Courts have refused divorce under section 13(1A) where the decree-holder, after getting the decree, did nothing to resume the marriage, or actively prevented it, and then relied on the failure as a ground. So a husband who files under section 9, refuses to let his wife back when she turns up, and then seeks divorce a year later should expect that conduct to be examined.

For a spouse who genuinely wants a divorce and has no other ground, this is one reason not to resist a restitution petition at every turn. For a spouse who wants to keep the marriage, it is a reason to respond to a decree by actually making an effort, and recording that effort in writing. Compare this with the requirements of divorce on grounds of desertion, which needs two years of separation and an intention to end the marriage.

Does a restitution decree stop a wife's maintenance?

Not automatically. Section 144(4) of the BNSS, like section 125(4) of the old CrPC, says a wife is not entitled to maintenance if she refuses to live with her husband without sufficient reason. Husbands often argue that a restitution decree against the wife settles that question. In Rina Kumari v Dinesh Kumar Mahto (2025), the Supreme Court rejected the argument that non-compliance with a restitution decree by itself disentitles a wife. The magistrate still has to look at whether she had sufficient reason, on the evidence before it.

The proviso to section 144(3) points the same way. If a husband offers to maintain his wife on condition that she lives with him and she refuses, the magistrate can consider her grounds for refusing, and the husband having married again or keeping another woman is expressly treated as a just ground. A section 9 petition filed to defeat maintenance therefore does not achieve as much as some husbands expect.

That said, a restitution decree is relevant evidence, and a wife who loses a contested section 9 case on the merits will face that finding in the maintenance court. This is why the section 9 reply deserves as much care as the maintenance case itself. Our posts on maintenance under section 144 BNSS and how courts decide interim maintenance explain how those claims are assessed.

The provisions that matter in a restitution case

Is restitution of conjugal rights constitutional?

For now, yes. In 1983 the Andhra Pradesh High Court in T. Sareetha v T. Venkata Subbaiah struck down section 9 as a violation of privacy and dignity. A year later the Delhi High Court in Harvinder Kaur v Harmander Singh Choudhry took the opposite view, and the Supreme Court in Saroj Rani v Sudarshan Kumar Chadha (1984) upheld section 9, treating it as a remedy that encourages reconciliation rather than one that compels intimacy.

The question has been raised again. Since 2019 a petition has been pending before the Supreme Court challenging section 9 of the Hindu Marriage Act and section 22 of the Special Marriage Act, relying on the later privacy judgment of the nine-judge bench in K.S. Puttaswamy. At the time of writing the provision remains in force, and family courts apply it. If the Supreme Court decides that challenge, pending cases would be affected, so check the current position before relying on a decree.

Does restitution apply to marriages outside the Hindu Marriage Act?

Yes, in similar terms. Section 22 of the Special Marriage Act provides the same remedy for civil and interfaith marriages solemnised or registered under that Act. Christian marriages are covered by the Divorce Act 1869 and Parsi marriages by the Parsi Marriage and Divorce Act 1936, each with its own provision for restitution. Under Muslim personal law, a husband or wife can sue for restitution of conjugal rights, and the family court decides it under the general principles of that law.

The practical issues are the same everywhere: whether the spouse withdrew, whether there was a good reason, what the petitioner really wants, and how the case interacts with maintenance and divorce. The grounds for divorce that follow a non-complied decree do differ between statutes, so check the specific Act that governs your marriage before you plan around the one-year rule.

Before you file or reply: a checklist

Run through these points before the papers go to court. Most mistakes in section 9 cases come from skipping one of them.

• Write down why you want the petition: reunion, protection against a desertion allegation, or something else. If the honest answer is 'to defeat maintenance', reconsider.
• Collect every message, letter or call record showing efforts to reconcile, from either side.
• List all other pending cases between you, with case numbers, courts and next dates.
• Confirm the correct current address of the respondent before notice is issued.
• Check which family court has jurisdiction under section 19 and whether that forum is fair to both sides.
• If responding, prepare the section 24 application and your income affidavit at the same time as the written statement.
• Decide whether a counter-claim under section 23A, for divorce or judicial separation, makes sense.
• Keep your pleadings consistent across all cases, because each will be read alongside the others.
• Go into mediation with clear terms on residence, money and children, not just a refusal.

How long does a section 9 case take, and when should you not file?

A restitution case that settles in mediation can be over in a few months. A contested case, with pleadings, a section 24 application, evidence and cross-examination, commonly runs for one to three years in Delhi's family courts, depending on the court's board and how many adjournments each side takes. Interim maintenance is usually decided much earlier, often within the first several hearings.

Do not file a section 9 petition if you do not actually want your spouse back. Courts are good at spotting a tactical petition, and a petition that is exposed as a tactic damages your credibility in every other case between you, including custody. If what you want is a divorce, look at whether you have a ground, such as cruelty as a ground for contested divorce, or whether a negotiated mutual consent divorce is possible.

Equally, if you are the respondent, do not treat a section 9 notice as harmless just because nobody can make you go back. The decree itself is the danger, not the order to return. A point Advocate B.K. Singh often makes to clients is that the year after a restitution decree is when the real litigation starts, so the time to put your reasons on record is in the written statement, not afterwards.

If you have received a restitution petition, or are thinking of filing one, and want an advocate to read the papers alongside your other cases, the team of Advocate B.K. Singh can look at them and tell you the next date and what needs to be filed. You can send the papers through our online enquiry form.