Section 1[1] of the Hindu Marriage Act, 1955 embodies the concept of Restitution of Conjugal Rights under which after solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. This right can be granted to any of the spouse.
Section 9 of HMA. Restitution of conjugal rights.- (1) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.
(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.
Where to complaint?
Civil court in whose local limits,
- marriage was solemnized
- husband and wife reside together or
- husband and wife last resided.
U can apply to the district court by way of petition for restitution of conjugal rights.
U must establish that:
- the other spouse has withdrawn from his society
- such withdrawal is without reasonable excuse
- there is no legal ground disentitling the petitioner from the relief of restitution of conjugal rights.
Remember burden of proof lies on the person who has withdrawn from the society of his / her spouse, to prove that he / she had reasonable cause to withdraw from the society of his /her spouse.
Anticipatory Bail
AB can be given to anyone who can show a reasonable cause that a cognizable complaint may be filed on him. In addition he may need to convince that he is not a criminal and will not harm the other party if given.
If there is an FIR or case already going on anywhere and you apply for AB, the opposite party will be notified and THEY WILL OPPOSE IT. So better to not give that chance as that dramatically reduces your chance of getting AB.
As your wife has left you and you anticipate something like 498a on you. Best thing to do:
1) File a police complaint that you have been getting threats for money and false cases on your mobile. Put a lot of allegations on wife and all what has happened till date to the extent possible (A big word document running 10 to 15 pages is fine).
2) Go to police station along with your family and get a received stamped with date on the complaint.
3) Make sure you do not mention any phone numbers or exact address of the girl (skip something like street name of house humber etc). If police ask tell you do not want to escalate or provoke them and hence giving a NC complaint only for your own reference so that no one can say why did not complain. Mention that she has taken all her streedhan with her.
4) Make a few such complaints.
5) Apply for AB for your entire family on the basis of above complaint. Tell that girl has already left the house and does not live with you and is threatening to put old parents in jail etc
