Analysis of Restitution of Conjugal Rights- futile or fruitful

On the mid night of August 15, 1947 the two self governing bodies India and Pakistan legally
came into existence. Thus, resulting in the dissolution of the British Raj. Speaking of its
contribution, British's legacy of common law principles stayed back in India. Though, Indian
legal system took a new route in other aspects. Still, personnel laws in present India owns the
origin from British rule. Close to 74 years of Independence we are still living with those laws, on
the other hand British has abolished those provisions. One such provision is the 'Restitution of
conjugal rights'.

Marriage as an institution

'Marriage' according to sociology, is a union supported socially involving two or more

individuals which is regarded as stable and designed to satisfy biological needs. It is one of the
universal social institutions established to control and regulate the life of mankind. Marriage is
also an institution that differs with understanding from one culture to another. According to law,
"Marriage is a binding contract between the two parties that joins together their possessions,
income, and lives." Marriage is believed to be solely dependent on trust, consent and respect. But
does marriage laws in India respect those thoughts? No. Matrimonial laws governing this
institution has inhumane provisions which goes against the validity of the Constitution and also
the principles of marriage. The law-mandated under restitution is a ‘coercive act’ that violates the
sexual and decisional autonomy and right to privacy and dignity guaranteed by Article 21 of the
constitution. This remedy is available to both the spouses but restitution by wife is very rare.
Unfortunately it is the wife (woman), who is the most affected by this provision.

Restitution of conjugal rights

Section 9 of The Hindu Marriage Act, 1955 speaks about the 'Restitution of conjugal rights'. It
states, "When either the husband or the wife has, without reasonable excuse, withdrawn from the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".
Decoding the Section -

· The provision in reality is viewed as a means to save the marriage.

· If a wife, without any lawful cause, refuses to live with her husband, then the husband is
entitled to sue for restitution of conjugal rights. Similarly, the wife has the right to
demand for the fulfilment by the husband of his marital duties.

· So, any of the party of a valid marriage may enforce restitution of conjugal rights on
lawful ground.

Critical Analysis of the provision

It is a general matrimonial rule that, each spouse is entitled to the society and comfort of the
other. But, comfort to what extent? Does this hold good for the present social set up? We have
provisions of matrimonial law which empower courts to ask estranged spouses to "cohabit" and
"take part in sexual intercourse". Can courts force individuals to cohabit without their consent
just because the purpose of marriage is fulfilment of comfort? All of these remains as questions.

The decree of restitution of conjugal rights violates -

(i) Freedom of association - Article 19(1)(c).

In the case Huhhram v. Misri Bai, despite the wife's complaint to the court on being sexually
assaulted by her in-laws, the court passed a decree in favour of the husband. In Atma Ram v.
Narbada Devi, the husband clearly pleaded that he no longer wants to live with his wife but the
decree of restitution of conjugal rights was passed in favour of the wife. It is the clearest example
of forced union brought about by a restitution decree.

(ii) Freedom to reside and settle in any part of India - Article 19(1)(e) and Freedom to practice
any profession - Article 19(1)(g).

There are many cases where, just for a mere refusal of the wife for job resignation or her abroad
job opportunities, restitution of conjugal rights are claimed by the husband. In the present
modern-developed social world, women are trying hard to get jobs for becoming economically
and financially independent and be self dependent, to lead a dignified life. A mere refusal of the
wife to resign her job at the instance of the husband is not a sufficient ground for granting a
decree of restitution in favour of the husband.

(iii) Infringement of Article 21 and Article 14

It was in the earlier conservative patriarchial society where wives were regarded as the chattel of
the husband. We have far past that phase now, it is the age of modernism and had a mentality
shift. We are living in a country where same sex marriages are allowed, Adultry is no more a
crime anymore, Triple talak has been abolished. Women can get educated and enter into any
profession of their choice. There are no bars on her to travel abroad and have a career.

Article 12 of Universal Declaration of Human Rights states that "No one shall be subjected to
arbitrary interference with his privacy, family, home or correspondence nor to attack upon his
honour and reputation. Everyone has the right to protection of the law against such interference
or attacks".

Judgments and interpretations of the provision

In the early case of Gobind v. State of Madhya Pradesh, the Supreme Court held that the right to
privacy protects “the personal intimacies of the home, the family, marriage, motherhood,
procreation and child rearing”. This definition it was assumed to treat home as a private space
where the law could not interfere. In 1983, the Supreme Court of India held that "the right to
privacy did not guarantee the autonomy of an individual over her own body, and so the
restitution of conjugal rights under section 9 of the Hindu Marriage Act could not be said to be
unconstitutional on the ground that it violated the right to privacy."

Supreme Court in the case of Saroj Rani v. Sudershan Kumar, the court said that the decree for
restitution of conjugal rights offers the husband and wife an opportunity to settle up the matter
amicably. It allegedly serves a social purpose as an aid to the prevention of break-up of the
marriage. The court considers the governmental intrusion into the bedroom of their marital house
rather casual.

A different perspective of privacy was adopted by the Andhra Pradesh High Court in T.Sareetha
v. Venkata Subbaiah when it held that “the right to privacy belongs to an individual and is not
lost by marital association”. The court observed that the enforcement of section 9 against an
individual compelled her to have sexual relations with her spouse, thus depriving her of control
over her body. This, according to the court, was a serious breach of the right to privacy as it
transfers “the choice of whether or not to have marital intercourse to the State from the
concerned individual”.

But most of the decree support the former perspective than the latter. Being in a democratic
governed country, also called the people's rule. How can people rule, if their basic private laws
are snatched away.

Conclusion

Recently Iran launched a dating app to promote the child bearing as their population had
decreased. It is so absurd and disturbing. Indian courts force two individuals to cohabit without
their consent. Why is there so much intervention of State and Courts in the privacy laws of an
individual even in 2021. State cannot intervene in the matters related to an individuals bedroom.
Any absurd law anywhere in the world will definetely have effect on the entire world. For sure, it
is to be agreed that restitution of conjugal rights has the main purpose of mending the marriage
and opening up a opportunity for second chance for reconciliation. But what if either of the party
does not consent for the reconciliation and is willing to move out of the marriage.

Considering the fact that marital rape is not an offence in India. However, compelling a woman
to live with her husband takes away her right to choose whether or not to have sexual
intercourse, as her husband can forcibly have sexual intercourse with her without legal sanction.
Though Section 9 of the Hindu Marriage Act does not make sexual intercourse compulsory but,
forcing a woman to stay with her husband puts her at major risk of marital rape, depriving her of
autonomy over her own body and thus violates her right to privacy.

Countries like United Kingdom, Australia, Scotland, Ireland, Canada had the provision of
restitution of conjugal rights which later got have abolished. It is a clear example that shows that
changes in society should team up with the required change in law. As society's perspective
progresses so should the law of the land. As the new generation takes up the responsibility of the
country so should the new generation laws emerge. Mainly when it comes to privacy laws,
everyone now are aware of the concept of mutual consent, good touch- bad touch, respecting
private space and many more. Even though there is so much awareness, it is of no use when the
law of the land does not support these concepts.

Since a decade, India has seen very diverse change in laws. Many absurd, patriarchial
stereotypical laws were abolished. Like the Sabrimala verdict, abolishing adultry laws,
abolishing Section 377, abolishment of triple talak and many more. But one such provision of
Hindu Marriage Act, 1955 is causing unprogressiveness and hampering privacy. It is high time
that India abolishes the restitution of conjugal rights, taking into consideration the breach of the
right to privacy it violates.

References

1. Mohd. Khurshid Alam, (1998) 9 DULJ 135, Legal Aspects of Restitution of Conjugal Rights, 'A Legal Aspects of
Restitution of Conjugal Rights', SCC Online

2. Restitution Of Conjugal Rights: Legal Intrusion Into The Lives And Bodies Of Women By Shraddha Upadhayay
https://feminisminindia.com/2019/04/11/restitution-conjugal-rights-women/

3. The Restitution of Conjugal Rights in Indian Law violates the Right to Privacy by Anik Bhaduri
https://ohrh.law.ox.ac.uk/the-restitution-of-conjugal-rights-in-indian-law-violates-the-right-to-privacy/

4. 45 JILI (2003) 453, Restitution of Conjugal Rights: Constitutional Perspective by M. Gangadevi. SCC Online

5. T. Saritha v. Vengata Subbiah, AIR 1983 AP 356.

6. Ajaya K. Vishvesha, “Restitution of conjugal rights under Muslim law - A critical appraisal” Indian Bar Review,
Vol. 14 382(1987)