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Marriage law · After marriageRestitution of Conjugal Rights: Section 9 HMA Explained
Restitution of conjugal rights is a petition asking the court to direct a spouse who has left to come back. It is one of the most debated remedies in Indian family law.
What the remedy is
Section 9 of the Hindu Marriage Act, 1955 says that when either spouse has, without reasonable excuse, withdrawn from the society of the other, the aggrieved spouse may petition the district court for restitution of conjugal rights. If the court is satisfied that the statements are true and there is no legal ground to refuse, it may pass a decree. The Explanation to the section puts the burden of proving reasonable excuse on the spouse who withdrew.
Section 22 of the Special Marriage Act, 1954 provides the same remedy for marriages under that Act.
What a decree actually does
A decree of restitution is a court direction to resume cohabitation. It cannot be enforced by physically forcing someone to live with their spouse. Under the Code of Civil Procedure, a decree for restitution may be enforced by attachment of property where the decree-holder wants it, but not by imprisonment.
In practice, the decree is important for what follows:
- Path to divorce: under section 13(1A) of the HMA, if there has been no restitution of conjugal rights for one year or more after the decree, either spouse may seek divorce. See grounds for contested divorce.
- Maintenance: a wife's refusal to return without sufficient reason can affect a claim to maintenance under section 144 BNSS (old section 125 CrPC). Equally, a husband who files a section 9 petition while himself mistreating his wife is unlikely to succeed. See maintenance and alimony.
What is a "reasonable excuse"?
Courts have accepted many reasons, depending on the facts, including cruelty, violence, dowry harassment, a serious threat to safety, or conduct that would be a ground for matrimonial relief. If you left home because of abuse, record the reasons and seek help under the Domestic Violence Act.
The constitutional challenge
Section 9 has been challenged several times. In 1983 the Andhra Pradesh High Court struck it down in T. Sareetha v. T. Venkata Subbaiah, but in Saroj Rani v. Sudarshan Kumar Chadha (1984) the Supreme Court upheld it, describing it as a measure to help preserve marriage.
In Ojaswa Pathak v. Union of India, filed in 2019, law students asked the Supreme Court to strike down section 9 HMA, section 22 SMA and the related CPC rules. They argue that a court order to cohabit violates privacy, dignity and sexual autonomy under Article 21, as recognised in the 2017 privacy judgment, and is gender-discriminatory. The Supreme Court issued notice to the Centre in 2019. As of our last check in October 2026, the case is listed as pending and no final judgment has been reported. Until the Court decides, section 9 remains in force.
When people use section 9
- Genuinely, to try to bring back a spouse and save the marriage.
- Strategically, to build a record before seeking divorce under section 13(1A), or in response to a maintenance claim.
If your spouse has filed a section 9 petition against you, it is important to respond, explain any reasonable excuse, and get legal advice about related cases.
Alternatives to consider
- Mediation or counselling through the family court.
- Judicial separation if you want legal space without ending the marriage.
- Mutual consent divorce if both of you accept the marriage is over.
This page is general information, not legal advice. Laws and procedures change, and courts may read them differently in your facts. For your own situation, speak to a lawyer, or get free legal aid through your District Legal Services Authority or NALSA's toll-free legal aid helpline 15100. More guides are on our marriage law hub.
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Second marriage on TrueSaath All marriage lawQuestions people ask
Can a court force my spouse to live with me under section 9?
No. A decree directs cohabitation, but it cannot be enforced by physical force or imprisonment; at most, property can be attached.
What happens if a restitution decree is not obeyed?
If there is no restitution for one year or more after the decree, either spouse can seek divorce under section 13(1A) of the Hindu Marriage Act.
Is section 9 of the Hindu Marriage Act unconstitutional?
Not as of now. The Supreme Court upheld it in 1984, and a fresh challenge in Ojaswa Pathak v. Union of India was still pending when we last checked in October 2026.
What is a reasonable excuse for leaving a spouse?
It depends on the facts, but courts have accepted cruelty, violence, dowry harassment and threats to safety, among other reasons.
Sources
Checked in October 2026. Laws, rules and court positions change; confirm the current position before acting on it.
- Hindu Marriage Act, 1955 (India Code)
- Special Marriage Act, 1954 (India Code)
- SC Observer: challenge to restitution of conjugal rights (Ojaswa Pathak v. Union of India)
- LiveLaw: Supreme Court seeks Centre's affidavit in challenge to restitution provisions
- Bar & Bench: divorce where restitution decree is not complied with for a year
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