Asked July 17, 2016

conjugal rights

  • 2 Answers

Hello sir.. I am married in last December and my wife was with me for only one month. After that she moved to her parents house because of Hindu customs. But now she is not returing to my house. We are joint family and now she and his father want me to separate from my family and want to stay with her. I requested my father in law to send her many times but he is not accepting. I am thinking they are planning for divorce and grab alimony from me. I strictly decided that i don't want to give divorce in my life time. Can I fight?? Will there be any forceful divorce cases??. I am ready to accept her but only in joint family.. 1000% I don't want to give divorce and alimony.. If required I am ready to stay alone with out wife but I don't want to give divorce.. Can I fight?

Answers 2

Default avatar
Saumya Kumar
You can file for the restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. Under this provision a person can request the Court to grant this order when his/her spouse has withdrawn from the society of the other without any legal ground. This essentially means that if the wife is no longer living with the husband then the husband can file a petition for restitution of conjugal rights. The only concern here is that the applicant must prove that the spouse is living away with no reasonable excuse. For example- A woman living away when she has been harassed for dowry is a reasonable cause for withdrawing from the society of her husband and an application for restitution of conjugal rights in this case will not be successful. A divorce under the Hindu Marriage Act can be given on certain grounds as covered under Section 13 of the Act. For your wife’s petition for divorce she will have to establish claims like adultery, cruelty, desertion, no cohabitation up to one year or divorce by mutual consent. Whatever be the circumstance, no divorce petition can be filed till a period of one year is exhausted from the solemnization of the wedding as per Section 14 of the Act. Therefore, your wife can file a petition only after December, 2016. If as per your knowledge you have not committed adultery or harassed her in any way, the only possible ground for divorce in your case can be the failure to cohabitate for one year (Section 13 (1A) of the Hindu marriage Act). In your case, since both of you are living apart it is very easy to prove this ground. It is therefore advised that you must file for restitution of conjugal rights to ensure that your wife comes back and this ground cannot be used for divorce. Further, over a period of time the Courts have recognized irretrievable breakdown of marriage as a ground for granting divorce and in the case of Sandhya Rani v. Kalyanram Narayanan ((1994) SCC (Supp.) 2 ) the Supreme Court identified that the fact that parties were living separately for 3 years was sufficient proof to show irretrievable breakdown of marriage. Your wife can make a similar petition for divorce and the divorce maybe granted to her on the grounds of irretrievable breakdown of marriage. In such a scenario, you will have to pay alimony as prescribed under Section 27 of the Hindu Marriage Act
Agree Comment 0 Agrees over 5 years ago

sir in this case the best thing to do is file a case for restitution of conjugal rights and let her come to court and explain why she is not joining you to lead married life.

Agree Comment 0 Agrees over 5 years ago

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