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Law Querier (Service)     18 September 2013

Restitution of conjugal rights after two years

Wife from foreign country came to marry in India and lived just 25 days with Husband in India. After 25 days she went back to foreign country. After six months of the marriage, Wife had stopped to receive telephone calls and did not give any response to Husband. Wife’s family members (in India) told to husband that wife does not want to keep relation with husband. Then, a divorce petition entered by so called power of attorney of wife u/s.13(1)(i a) of H.M. Act before two years. Then, after two years, the petition u/s. 13(1)(i a) of H.M. Act was converted to Section 13B of H.M. Act by keeping husband under force and POA of wife. Then, Husband has withdrawn his consent from the petition u/s.13B of H.M. Act of mutual consent divorce stating that He wants to sustain their marriage life and consent in petition u/s.13B of H.M. Act has taken under force. Family district Court has dismissed the both petitions-(1) The petition u/s. 13(1) (i a) of H.M. Act and (2) The petition u/s.13B of H.M. Act. There is no any pending case in Court now.

 

Que: Can Husband apply for Restitution of Conjugal rights under Section 9 of The Hindu Marriage Act, now after two years of desertion by wife?



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 5 Replies

VIRAJ KADAM (Advocate Supreme Court of India)     18 September 2013

Dear Friend

You can file Section 9 Petition. However, you will have to explain the delay in filing the Petition. In your case since you were before the Court you have some explanation to offer.

Also keep in mind Sect 29 of Limitation Act

Section 29(3) of the Limitation Act of 1963 provides-

"Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law."

Regards

VIRAJ KADAM

Advocate

1 Like

Law Querier (Service)     19 September 2013

What are advantages & disadvantages possible to husband in this case if he file case of restitution of conjugal rights u/s.9 of The H.M.Act?

Law Querier (Service)     19 September 2013

What are the advantages & disadvantages possible to husband in this case if he file case of restitution of conjugal rights u/s.9 of The H.M.Act?

Saurabh..V (Law Consultant)     19 September 2013

@Author

 

S.9 of HMA1955 which provides for Restitution of Conjugal Rights only paves a way for Divorce. If the court allows your petition, even then your spouse cannot be forced to live with you.

 

It is interesting to note here that, a wife can neither be forced to live with you nor be barred to have residential rights to live with you. However a husband neither has a right to bring his wife back nor can he deny her to enter his home. This clarifies the true position of the Indian System of matrimony when it comes to Matrimonial Laws.

 

I think in your case it would be wise to let her go and think about your future. But if you keep the situation as it is, neither you could marry again nor she can.

 

//peace

/Saurabh..V


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