The Supreme Court is set to reassess a provision permitting the restitution of conjugal rights under the Hindu personal laws.
Understanding Conjugal Rights
Conjugal rights are obligations generated by marriage, typically those referring to the right of a wife or husband to the companionship of the other spouse. These rights are recognized both in personal laws that deal with marriage and divorce and in criminal law which requires payment of maintenance and alimony to a spouse. One aspect of these rights, the right to consortium, is recognized and protected by Section 9 of the Hindu Marriage Act which allows a spouse to move court to enforce this right.
Origins of Restitution of Conjugal Rights
Restitution of conjugal rights has its roots in colonial-era laws and was originally codified in Hindu personal law. Originating from Jewish law, the restitution of conjugal rights arrived in India and other common law countries through British rule. British law viewed wives as the personal possession of their husbands, which restricted them from leaving their marriages. Similar provisions exist in Muslim personal law and the Divorce Act, 1869, which governs Christian family law. Interestingly, in 1970, the UK repealed their law on restitution of conjugal rights.
Controversial Provision: The Hindu Marriage Act, Section 9
Section 9 of the Hindu Marriage Act, 1955 deals with the restitution of conjugal rights. In this provision, when either spouse, without reasonable explanation, withdraws from the other, the aggrieved party may apply for restitution of conjugal rights to the district court. If satisfied with the plea, the court may decree restitution of conjugal rights accordingly.
The Challenge: A Breach of Fundamental Rights
The primary reason for challenging this law is that it allegedly violates the fundamental right to privacy. In a landmark judgment in 2019, a panel of nine judges from the Supreme Court recognized privacy as a fundamental right. This decision paved the way for potential challenges to several controversial laws including those on homosexuality, marital rape, restitution of conjugal rights, and the two-finger test rape investigations. Critics argue that a court-ordered restitution of conjugal rights is a coercive act by the state which infringes upon one’s sexual and decisional autonomy, and right to privacy and dignity.
Criticisms: Is the Law Biased Against Women?
Despite its appearance of being gender-neutral, this provision can disproportionately impact women. Women are often brought back to their marital homes under this provision, and given that marital rape is not criminalized in India, they become vulnerable to forced cohabitation. This raises questions about the state’s role in enforcing marital cohabitation, particularly when it may compromise individual rights.
Inconsistencies with Supreme Court Rulings
The law appears to be inconsistent with recent Supreme Court rulings that emphasize the right to privacy and bodily autonomy of married women. The court has stated that marriage does not rob women of their sexual freedom or choice. Critics question how a court can mandate cohabitation between adults when one party does not consent to it.
Misuse of the Provision
There is also concern over the misuse of this provision as a shield against divorce proceedings and alimony payments. Frequently, one spouse files for divorce from their place of residence, and the other counters this by filing for a decree of restitution in their place of residence.
Previous Judicial Decisions
In 1984, the SC upheld Section 9 of the Hindu Marriage Act in Saroj Rani v Sudarshan Kumar Chadha. The court held that the provision served a social purpose by preventing marital breakdowns. In contrast, the Andhra Pradesh High Court struck down the provision in T Sareetha v T Venkatasubbaiah, citing the right to privacy as one reason.
Looking Forward
Despite claims of gender neutrality, women often find themselves at a disadvantage in Indian society, and this law seems to exacerbate this issue. It is time for the judiciary and society to adopt more progressive views of marriage, focusing more on the autonomy and freedom of the individuals involved rather than traditional norms.