‘Restitution of conjugal rights comes only with maintenance’

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," Justice Roshan Dalvi said. The court was hearing a petition filed by a woman whose plea for alimony was turned down by the family court. She had left her husband's home after persistent demands for dowry.

"It is endemic in our country of which judicial notice is required to be taken that new, fresh and further demands of dowry at various times of marriage continue to be made as an abhorrent custom. These demands first made are met if they are reasonable. They cannot be continued to be made and met," the court noted.

The court said, "In this situation it is to be seen whether refusal of the wife to live with the husband and return to her matrimonial home would be justified." Justice Dalvi said, "The courts must, therefore, look not only to the form of allegations but the depth of the substance." The husband has been asked to pay interim maintenance of Rs 1,000 per month with arrears from September 2010.

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