When a husband or wife withdraws from the society without any reasonable excuses, the aggrieved party may approach the Court for restitution of conjugal rights. The decree of restitution of conjugal rights cannot be executed by forcing the party who has withdrawn from the society.
However, if the decree of restitution of conjugal right is not honored for a period of more than one year, subsequent to the date of the decree, it becomes a ground for divorce.
Husbands who do not maintain their wives cannot seek restitution of conjugal rights unless they can themselves perform their marital duties, the Bombay High Court has said, “In every petition of the husband whether he demands the company of the wife in a petition of restitution of conjugal rights or whether he demands his own freedom from his wife in a petition for divorce, the condition precedent for the grant of relief must be that he is himself ready and willing to discharge his marital obligations including duty to maintain his wife…the husband must, therefore, show his own offer to demonstrate how he wants to perform his part of the marriage contract”.
The court was hearing a petition filed by a woman whose plea for alimony was turned down by the family court. A judicial separation is a legal way to stay separate from the spouse, without obtaining a decree of divorce. It also helps in cases to defend a petition for restitution of conjugal rights.
Either party may present a petition on any of the grounds stated in the provisions for divorce, praying for a decree of judicial separation. A judicially separated spouse cannot be given a meaning to include a spouse merely living separately, and who has not obtained a decree for judicial separation.
In case, there has been no resumption of cohabitation between the parties to the marriage for a period of one year or more than that, after the passing of the decree for judicial separation, it shall be a ground for the divorce.