Conjugal Rights in India

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Recently, the Supreme Court (SC) has decided to begin hearing a fresh challenge to the provision allowing restitution of conjugal rights under Hindu personal laws.

• In 2019, a three-judge Bench of the SC had agreed to hear the pleas.

About Conjugal Rights 

• These are rights created by marriage, i.e. right of the husband or the wife to the society of the other spouse.
• It recognises these rights, both in personal laws dealing with marriage, divorce etc, and in criminal law requiring payment of maintenance and alimony to a spouse.
• Section 9 of the Hindu Marriage Act, 1955 deals with restitution of conjugal rights.
  • It reads: “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”
  • In simpler words, it recognises the right to consortium and protects it by allowing a spouse to move court to enforce the right.
• The concept of restitution of conjugal rights is codified in Hindu personal law now, but has colonial origins and has genesis in ecclesiastical law.
  • Similar provisions exist in Muslim personal law as well as the Divorce Act, 1869, which governs Christian family law.
• Incidentally, the United Kingdom (UK) repealed the law on restitution of conjugal rights in 1970.
• Process of Case Filing
  • If a spouse refuses cohabitation, the other spouse can move the family court seeking a decree for cohabitation.
  • Normally, when a spouse files for divorce unilaterally, the other spouse files for restitution of conjugal rights if he or she is not in agreement with the divorce.
  • However, the decision can be appealed before a High Court and the Supreme Court.
• The provision is seen to be an intervention through legislation to strike a conciliatory note between sparring spouses.

Reasons for Challenge

• The law is being challenged now on the main grounds that it violates the fundamental right to privacy.
  • A plea argues that a court-mandated restitution of conjugal rights amounted to a “coercive act” on the part of the state, which violates one’s sexual and decisional autonomy, and right to privacy and dignity.
  • The right to privacy was recognised as a fundamental right by a nine-judge Bench of the SC in 2019 , which set the stage for potential challenges to several laws such as criminalisation of homosexuality, marital rape, restitution of conjugal rights, etc.
• Although the law is ex-facie (on the face of it) gender-neutral since it allows both wife and husband to seek restitution of conjugal rights, the provision disproportionately affects women.
  • Women are often called back to marital homes under the provision and given that marital rape is not a crime, leaves them susceptible to such coerced cohabitation.
• There is also an argument whether the state can have such a compelling interest in protecting the institution of marriage that it allows a legislation to enforce cohabitation of spouses.

Judiciary’s Current Stand

• In 1983, a single-judge bench of the Andhra Pradesh High Court had for the first time struck down the provision in the case of T Sareetha versus T Venkatasubbaiah and declared it null and void.
  • It cited the right to privacy and most importantly, also recognised that compelling “sexual cohabitation” would be of “grave consequences for women”.
• However, in the same year (1983), a single-judge Bench of the Delhi High Court upheld the provision in case of Harvinder Kaur v Harmander Singh Chaudhry.
  • Delhi HC criticised the Andhra Pradesh High Court judgment and held that it is in the interests of the State that family life should be maintained, and that homes should not be broken up by the dissolution of the marriage of parents.
• In 1984, in the Saroj Rani versus Sudarshan Kumar Chadha case, the SC upheld the Section along with Delhi High Court view and overruled the Andhra Pradesh High Court verdict.
  • It held that the provision serves a social purpose as an aid to the prevention of break-up of marriage.

Source: IE