Conjugal rights relate to the spousal privileges and duties formed by marriage. The law of both personal and criminal nature acknowledges these rights. Section 9 of the Hindu Marriage Act 1955 and Section 22 of the Special Marriage Act 1954 grant a spouse the authority to appeal to the local district court if they feel the other partner has without “reasonable cause” withdrawn from the marriage. However, these rights have been questioned recently, giving rise to a contentious case titled Ojaswa Pathak vs Union of India that has been in a pending state before the Supreme Court (SC) since February 2019.
The Origin of Conjugal Rights and Restitutions
The concept of restitution of conjugal rights has roots in colonial times and was derived from Jewish law. This concept reached India along with other common law countries through British Rule, treating wives as a possession of their husbands. Similar provisions also exist in Muslim personal law and the Divorce Act, 1869, concerning Christian family law. Notably, the U.K repealed this law in 1970.
The Contested Provision: Hindu Marriage Act, 1955
The disputed provision is Section 9 of the Hindu Marriage Act, 1955, which deals with restitution of conjugal rights. According to it, if either party of the marriage withdraws without reasonable excuse, the aggrieved party may file a petition to the district court requesting the restitution of conjugal rights.
Why the Law is Being Challenged
The primary reason for the challenge against this law is on the grounds that it infringes upon the fundamental right to privacy, recognized by a nine-judge Bench of the SC in 2017 as a component of the right to life and personal liberty protected under Article 21 and Part III of the Constitution. This judgement opened up the potential for a challenge to several laws related to criminalisation of homosexuality, marital rape, restitution of conjugal rights, and the two-finger test in rape investigations.
The Gender Bias within Conjugal Rights
Despite the gender-neutral language of the law, where both wife and husband can seek restitution of conjugal rights, the provision disproportionately affects women. It exposes women to coerced cohabitation as they are often called back to their marital homes under this provision and marital rape is not defined as a crime.
Contradictions with Supreme Court Judgements
In Joseph Shine v Union of India 2019, the SC emphasized the right to privacy and bodily autonomy of married women, asserting that marriage does not eliminate their sexual freedom or choice. However, the contested provision could be seen as contradictory since it potentially mandates cohabitation between spouses even against one party’s will.
Misuse of Conjugal Rights Provision
This law has also been used as a defensive strategy against divorce proceedings and alimony payments. For example, when one partner files for divorce from their place of residence, the other spouse may retaliate by filing for a decree of restitution at their own residence.
Previous Judgments Relating to Conjugal Rights
Several court cases in the past have upheld marriage’s conjugal rights, such as the Punjab and Haryana High Court in the Tirath Kaur case and the Delhi High Court in Harvinder Kaur v Harmander Singh Chaudhry. Conversely, a single-judge bench of the Andhra Pradesh High Court struck down the law in T Sareetha v T Venkatasubbaiah, citing privacy concerns. However, these rulings vary with no cohesive stance.
The Need for Progressive Change
The debate over marital rape criminalisation necessitates scrutiny of conjugal rights restitution provisions that, despite their gender-neutral phrasing, impose an additional burden on women and pose direct threats to their bodily autonomy, privacy, and individual dignity. Despite actively discussing gender equality, Indian society still puts women at a disadvantage, a reality this provision exploits. The persistence of dowry deaths and emotional and mental manipulation for dowry is indicative of the need for society and the judiciary to adopt more progressive views. It’s crucial to recognize marriage as a union based on the freedom and autonomy of two individuals who willingly decide to share these traits with each other.