Restitution of Conjugal Rights

Introduction

Marriages in India have always been considered the most important and most sacrosanct social institution. It is not only a union of two people, but of two families given approval by society. This tradition has been going on from time immemorial, wherein people married not only to satisfy their basic biological needs but also for their economic needs. This could be seen even historically, wherein kings used to marry to expand their empires.

The concept of marriage in Hindu religion has been given the greatest importance. Every Hindu must marry. It is one of the duties mentioned in Shastric Hindu law. Most marriages in the Hindu religion are arranged by the families of the individuals and not as per their choice. That means these people have very little say in their life’s most important decision. This lack of inclusion in decision-making is one of the reasons for disputes between married couples, besides the increase in complexity of day-to-day life, leading to the desertion or abandoning of one spouse by the other. And since marriage has been given a very high status, society and even the law try to prevent or save it from being broken. For this purpose, Section 9 of the Hindu Marriage Act of 1955, i.e., Restitution of Conjugal Rights [1], was included as a remedy to protect this relationship. Although this provision might look positive from the point of view of saving a marriage, it has always been a bone of contention as to whether it infringes upon the fundamental rights to privacy, equality, and the right to choice of an individual or not by compelling the other spouse to cohabit.

Meaning

Restitution of Conjugal Rights was not originally a part of Indian laws but was adopted from the British common law wherein women were considered the possession or the property of their husbands. In India it was introduced by the privy council in the case of MoonsheeBazloor v. Shamsoonaissa Begum[2],wherein the wife withdrew from the society of the husband because he disposed her of her property and misbehaved with her. The husband contended that the wife cannot live separately even if the husband misbehaved. The court ruled in favour of the husband, citing that the wife could not withdraw from the society of the husband without a reasonable excuse.

Once a marriage is solemnized, both the husband and wife have certain rights and obligations towards each other. One of these rights is the right to stay together, a remedy by which one spouse can compel the estranged spouse to either cohabit with him/her or face the confiscation of property, with the help of the court. The court may grant a decree of conjugal rights, if convinced that the other spouse has withdrawn from the society of the petitioner without any reasonable excuse. The burden of giving a reasonable excuse for withdrawal from society lies with the one who has withdrawn. If proven, the decree shall not be granted. This provision has also been provided in Section 22 of the Special Marriage Act,1954, Section 32 of the Indian Divorce Act, 1869, and Section 36 of the Parsi Marriage and the Divorce Act,1936.

For this provision to apply the following conditions have to be met:

1. Withdrawal of one spouse from the society of the other spouse
2. Without any reasonable excuse.
3. The court must be satisfied that there was no reasonable excuse for the withdrawal.

The terms “withdrawal from the society” and “reasonable excuse” in the definition are somewhat considered ambiguous as they do not clearly specify what an actual withdrawal is or what an excuse would mean. For instance, in Tirath Kaur vs Kripalkaur [3], the wife left the husband’s house to continue her job. The husband was satisfied with her job as long as she was giving a part of her income, but as he demanded for more money, the wife couldn’t fulfill his demand. So, the husband started forcing her to leave her job, and while she wasn’t ready, he filed for restitution of conjugal rights in court. The court decreed in favour of husband, citing that it is the foremost duty of the wife to serve her husband and, therefore, the reluctanceof wife to leave her job amounts to withdrawal from the society of the husband.

However, this decision was overruled in the cases of Shanti Devi v. Ramesh Chandra Roukar and Ors. and Smt. Vibha Shrivastava v. Dinesh Kumar Shrivastava, as it was held that mere denial of wife to leave her job doesn’t amount to withdrawal from the society of the husband.

Constitutional Validity

Although this provision was abolished in Britain in 1970, it still continues to be a part of Indian laws even today. This law has been challenged many times in different courts regarding its constitutional validity. In T. Saritha Vengata Subbiah v. State [4], the Andhra Pradesh High court struck down this provision to be unconstitutional as it violatedan individual’s fundamental right to privacy and equality under Article 21 and Article 14. Justice P.A. Chaudhary was of the opinion that compelling one spouse to cohabit and have sexual intercourse with the other spouse, deprives the individual of his/her right to privacy and the right to choose by depriving the person of their own body.

However, the Delhi High Court in Harvinder Kaur v. Harminder Singh [5], reinstated the constitutional validity of Section 9 of the Hindu Marriage Act 1955,by reasoning that in the case of T. Saritha Vengata Subbiah vs State, the court only focused on the concept of sexual intercourse, whereas a marriage consists of more than having sex. The court held that marriage is a consortium, i.e., it includes companionship, love, affection, mutual services, and sexual intercourse and by compelling the spouses to live together, the court is only promoting cohabitation and not forceful sexual intercourse.

Unfortunately, the Delhi High court forgot while pronouncing the judgement that marital rape in India is still not criminalized, robbing the wife of her autonomy over her own body and her choice of whether to have or not to have sexual intercourse. While the provision of restitution of conjugal rights only promotes cohabitation, it puts the wife at risk, as the husband can forcefully indulge in sexual intercourse with the wife without having any legal consequences.

The issue regarding the constitutional validity of this provision finally reached the Supreme Court of India in the case of Saroj Rani vs. Sudarshan Kumar Chadha [6]. The apex court ruled in line with the Delhi High Court’s decision that the main purpose of this provision is to allow cohabitation of couple and decreed that it helps society avoid denigrating by upholding the institution of marriage.

Controversy regarding the issue

The main issue that has been contested by almost all courts is that this provision helps in the preservation of marriage through cohabitation, but it is also believed that there is no sense in which two people living in a relationship that lacks the emotional interest of either of the parties. This remedy also infringes upon the right to privacy under article 21 of the constitution, as it interferes in the family matter of individuals and compels them to live together without their choice. This right was not recognized earlier, but was established as fundamental right in the case of Govind v. State of MP [7]. It was observed that “any definition of the right to privacy must encompass and protect the personal liberty of the home, family, marriage, motherhood, procreation, and child rearing”. These forceful rights that compel a person to live with another person also violates the fundamental right to Form Association under article 19(1)(e).

Although these conjugal rights are Gender-neutral, it disproportionately affects the wife as it deprives the wife of control over her own body because Marital rape in India is still considered neither a crime and nor a ground for divorce. While drafting this legislation, the member of parliament from Kolhapur, BalasahebHanumantraoKhardekar called out this provision as “uncouth, barbarous and vulgar” as the government was acting as an abettor in a form of legalized rape.

This provision is also misused by some people to get divorce and shield away from paying alimony because if the estranged party doesn’t obey the orders then it can be considered as a ground for divorce, in a way defeating the whole purpose of this remedy of saving the marriage.

It is also contested that this provision was borrowed from the feudal England, which considered women as chattel of their husband like any other property, with no individual rights. This provision has already been abolished by the British government in 1970. Some progressive thinkers’ however, questions the idea that Why India, a democratic country that provides all its people with the fundamental right to equality under Article 14,is still sustaining this provision that promotes patriarchy in the society when other developed and developing countries around the world, like Canada, Scotland, Australia, South Africa, etc., have already abolished it.

Recent Developments

Recently this provision has been challenged again in the Supreme court on the basis that it violates the fundamental right to privacy and equality. Further, the petitioners have contended that these rights amount to “coercive acts” by the state that takes away a person’s sexual and decisional autonomy. It also violates the principle that was laid out by the supreme court in the case of Joseph shine v Union of India.

Conclusion

As our society is progressing with time so our laws should progress. These archaic laws should not have any place in our statutes books that deprives a person of his/her liberty and privacy. Marriage is not a deal, but a consensual agreement between two individuals who have decided to spend their life together and it should not be the prerogative of one individual to force the other to stay with him/her. Reconciliation instead of restitution should be considered so that both the parties can mutually resolve their differences through a peaceful method rather than going to courts and forcing the estranged spouse to live with the plaintiff without the will to do so. The courts should also reconsider their roles, instead of interfering in familial matters, the court should appoint a separate committee whose main function should be reconciliation, as the basic function of the courts is conflict resolution. And at last, anything that violates the Fundamental rights of any individual should be declared null and void.

This article is authored by Neha Bhardwaj, student at Institute of Law, Nirma University

References                

1. https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
2. https://www.casemine.com/judgement/in/5779f24ae561096c9312f7ae
3. https://www.casemine.com/judgement/in/56b494f1607dba348f00fad7
4. https://indiankanoon.org/doc/1987982/
5. https://indiankanoon.org/doc/191703/
6. https://indiankanoon.org/doc/1382895/
7. https://ccrd.vidhiaagaz.com/constitutional-validity-of-restitution-of-conjugal-rights/
8. https://www.latestlaws.com/articles/restitution-of-conjugal-rights-an-analysis-by-ekta-kumari