Restitution of conjugal rights: when a spouse has left

What it is

Restitution of conjugal rights is a court order asking a husband or wife who has left the other to come back and resume married life. Conjugal rights are the right of spouses to each other's company. Restitution means putting it back.

The spouse who files is the petitioner. The spouse who left is the respondent. The court's final order is a decree.

It is a family case, not a criminal one. Nobody is punished. The court is asked to say that the marriage should continue as a shared life, and why the spouse who left had no good reason to leave.

When it applies

You can file when your spouse has withdrawn from your society — left the home, or stopped living with you as husband and wife — without a reasonable excuse.

The law your marriage falls under gives the route:

• Hindus, Buddhists, Jains and Sikhs — Section 9 of the Hindu Marriage Act, 1955.
• Marriages under the Special Marriage Act, 1954 — Section 22, in nearly the same words.
• Christians — Section 32 of the Divorce Act, 1869. Section 33 adds that the only answers your spouse can give are those that would support a case for judicial separation or for declaring the marriage void.
• Parsis — Section 36 of the Parsi Marriage and Divorce Act, 1936, where a spouse has deserted or without lawful cause stopped living with the other. The case is called a suit.

Under the Hindu Marriage Act and the Special Marriage Act, once you show your spouse withdrew, the burden of proving a reasonable excuse is on the spouse who left. What counts as reasonable depends on the facts. Cruelty, violence, or conduct that would be a ground for divorce or judicial separation is the clearest example.

When it is the wrong route. If you left because of abuse and your spouse is asking you to come back, read Facing violence at home and Domestic violence application — the law protects your right to live safely, including in the shared household. If you want to live apart legally, see Judicial separation. If you want the marriage to end, see Contested divorce.

What the decree does, and what it does not

• It is an order to resume married life. It is not a criminal order; disobeying it is not an offence under these Acts.
• It can lead to a divorce. Under Section 13(1A)(ii) of the Hindu Marriage Act, if there has been no restitution of conjugal rights between the couple for one year or more after the decree, either spouse — including the one who lost the case — can ask for a divorce on that ground. The Special Marriage Act has the same rule (Section 27(2)), and also makes failure to comply with the decree a ground for judicial separation (Section 23).
• It can affect maintenance. A wife who refuses without sufficient reason to live with her husband cannot get maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 144(4)). Whether her reason was sufficient is for the court to decide.

Because of these effects, a petition for restitution is sometimes filed as a step towards something else. Think about what you actually want before filing, and talk it through with an advocate.

The steps and the timeline

1. Try to talk first. Many couples resolve a separation through family, counselling or a written letter asking the spouse to return. A letter also shows the court you tried.

2. Choose the court. The petition goes to the Family Court, which handles restitution of conjugal rights where one has been set up (Family Courts Act, Section 7), otherwise to the district court. Under Section 19 of the Hindu Marriage Act you can file where the marriage took place, where your spouse now lives, where you last lived together, or, if you are the wife, where you live now.

3. The petition. It sets out the marriage, how and when your spouse left, that there was no reasonable excuse, and what you did to bring them back. You sign and verify it, and it is filed with the court fee, which is set by your state.

4. Notice and reply. The court sends notice to your spouse, who files a written statement — their answer. They may say they had a reasonable excuse and give the facts.

5. Settlement and counselling. Before granting relief, the court must first try to bring about a reconciliation where it can, and may adjourn the case for up to fifteen days and refer the couple to a person who reports back on whether reconciliation is possible (Hindu Marriage Act, Section 23). A Family Court must also try to help the parties settle (Family Courts Act, Section 9). Expect to be sent to counselling or mediation.

6. Interim applications. While the case runs, either spouse without enough income can ask for monthly support and the costs of the case (Section 24), and the court can make orders on the custody, maintenance and education of children (Section 26).

7. Evidence and decree. Each side gives evidence and is cross-examined. The court decrees restitution if it is satisfied the statements in the petition are true and there is no legal ground to refuse (Section 9), and if the other conditions of Section 23 are met — for example, that you are not taking advantage of your own wrong.

8. Appeal. An appeal from a Family Court goes to the High Court within thirty days (Family Courts Act, Section 19). Where a district court decided it, the Hindu Marriage Act allows ninety days (Section 28).

How long. Section 21B of the Hindu Marriage Act asks courts to try to finish the trial within six months of notice reaching the respondent. Treat that as a target, not a promise.

Documents needed

• Proof of marriage: the marriage certificate, or wedding photographs and an invitation card.
• Proof of your identity and current address, and your spouse's last known address.
• A written timeline: when you married, where you lived together, when and how your spouse left.
• Anything showing you tried to bring them back: letters, messages, notices, names of relatives who mediated.
• Anything your spouse said about why they left.
• Your income and expenses, and what you know of your spouse's, if support is in issue.
• Children's names, dates of birth and school details.
• Copies of any other case between you, such as a maintenance or domestic violence case.

Typical cost

The cost depends on your city and court, whether the case is fought hard, the number of hearings, and whether interim applications or an appeal follow. The court fee is set by your state. The advocate who takes your case quotes their own fee before you pay anything; eMunshi does not set it.

What the advocate does

• Tells you whether a petition fits what you want, or whether another route — talks, separation, divorce, mutual consent — fits better.
• Checks which law applies and which court to file in.
• Drafts the petition and any letter to your spouse before it.
• Prepares interim applications for support, custody and costs.
• Appears for you at counselling, evidence and arguments, and advises on any settlement and on appeal.

The self-serve document that comes before it

There is no self-serve document for a restitution petition; it depends on your facts. If you and your spouse agree that the marriage should end, a mutual consent divorce is usually simpler, and the joint petition and affidavits can be prepared at ₹4,999, checked by a panel advocate. If you want advice before deciding, a 30-minute call with an independent advocate from our panel starts at ₹999; talk to an advocate.