REPRODUCTIVE RIGHTS OF SPOUSES IN A MARRIAGE: A CONSTITUTIONAL

QUERY

4.3. FAMILY LAW - I

Submitted by:

DISHA MOHANTY

UID Number: SF0119021

Second Year (Fourth Semester)

FACULTY IN CHARGE:
Mr. Thangzakhup Tombing
(Assistant Professor of Law)

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, AMINGAON

GUWAHATI
 TABLE OF CONTENTS

1. Introduction .............................................................................................................. 3

1.1. Overview................................................................................................................ 3

1.2. Research Questions ................................................................................................ 4

1.3. Literature Review .................................................................................................. 4

1.4. Research Methodology .......................................................................................... 5

2. Termination of Pregnancy Without Spousal Consent as “Cruelty” and a Ground for

Divorce ........................................................................................................................... 6

3. Restitution of Conjugal Rights: Implications on Rights to Sexual and Reproductive

Autonomy and Health ..................................................................................................... 8

4. Conclusion ............................................................................................................... 9

5. Bibliography .......................................................................................................... 11
 1. INTRODUCTION

1.1. Overview

One of the key challenges in the area of civil liberties is to strike the optimum balance between
individual autonomy and the equally legitimate, but often conflicting, interests of the
community. Libertarianism and utilitarianism have emerged as two dominant schools of
thought in response to this dilemma. As per the libertarian philosophy, personal autonomy
cannot be restricted by the State except to the extent that an exercise thereof limits the liberty
of other individuals.1 On the other hand, utilitarianism is founded on the principle that any State
action should be for "the greatest good of the greatest number",2 and therefore gives primacy
to the interests of the community at large.

Any reproductive choice is a decision having a direct impact and the greatest bearing, only on
the concerned individual(s). Like marriage and other aspects of family life, which have a
limited effect on the community, it is an area ordinarily left to individual decision-making.
Thus, by its very nature, the right to reproductive choice is an aspect of the right to privacy or
the "right to be let alone."

India’s matrimonial laws touch on several aspects of sexuality and reproduction, including the
role of sex and reproduction in marriage. In recent years, the Supreme Court of India has in a
number of cases, recognized sexual and reproductive autonomy as a right of an individual.3 In
Joseph Shine v. Union of India,4 the Supreme Court struck down a provision that criminalized
adultery by a wife,5 and in doing so recognized the sexual autonomy of a person within
marriage in the following terms: “There is an assumption that a woman contracts away her
sexual agency when entering a marriage. That a woman, by marriage, consents in advance to
sexual relations with her husband is offensive to liberty and dignity. Such a notion has no place
in the constitutional order. Sexual autonomy constitutes an inviolable core of the dignity of
every individual. At the heart of the constitutional rights guaranteed to every individual is a
primacy of choice and the freedom to determine one’s actions. Curtailing the sexual autonomy

1
Kimberley,Civil Disobedience, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Summer 2021 Edition),
Edward N. Zalta (ed.), https://plato.stanford.edu/archives/sum2021/entries/civil-disobedience/.
2
Driver, Julia, "The History of Utilitarianism", The Stanford Encyclopedia of Philosophy (Winter 2014 Edition),
Edward N. Zalta (ed.), https://plato.stanford.edu/archives/win2014/entries/utilitarianism-history/.
3
Joseph Shine v. Union of India, (2019) 3 SCC 39; Navtej Singh Johar v. Union of India, (2018) 10 SCC 1;
Justice K.S. Puttaswamy – I v. Union of India, (2017) 10 SCC 1; Independent Thought v. Union of India, (2017)
10 SCC 800; Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
4
Joseph Shine v. Union of India, (2019) 3 SCC 39.
5
Section 497, Indian Penal Code, 1860
of a woman or presuming the lack of consent once she enters a marriage is antithetical to
constitutional values.” This judgment has dwelt on the importance of sexual autonomy as a
value which is integral to life and personal liberty under Article 21.

Marriage – whether it be a sacrament or contract – does not result in ceding of the autonomy
of one spouse to another. Despite this judgment, challenges to sexual and reproductive
autonomy emerge in India’s matrimonial laws.

1.2. Research Questions

The research paper will answer the following questions:

• What is the jurisprudence behind the idea of termination of pregnancy without spousal
consent as “cruelty” as a ground for divorce?
• What are implications of the restitution of conjugal rights on the sexual and
reproductive autonomy and health?

1.3. Literature Review

Though different literature has been used in the formation and compilation of the research
project by the researcher. But this has largely contributed towards the understanding of the
project.

➢ FLAVIA AGNES, FAMILY LAW II: MARRIAGE, DIVORCE AND MATRIMONIAL

LITIGATION:2, (Oxford, 2011): Family law in India has a complex legal structure
where different religious communities are guided by their own personal laws, each of
which historically evolved under various social, religious, political, and legal
influences. This book examines family law in the light of social realities,
contemporary rights discourse, and the idea of justice. It helped me understand the
litigation around the validity of marriage and procedures for dissolving it, the
contemporary debates around issues such as child marriages, NRI marriages, and
registration of marriages the framework of law on the issues of maintenance,
matrimonial residence, and custody and guardianship of children, and whether
considering the procedural aspects of matrimonial law, and the increased powers of
the family courts, gender justice concerns are being adequately addressed.

➢ M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (Lexis Nexis, Gurgaon, 2010): The
book contains in-depth insights that will benefit students, research scholars, lawyers,
 judges, legal academics, policy makers and interested citizens who look for the latest
in constitutional jurisprudence. It helped me understand the meaning of the
reproductive rights of spouses that arise from the fundamental rights guaranteed by
the Constitution.

1.4. Research Methodology

In this project, researcher has adopted Doctrinal research. Doctrinal research is essentially a
library-based study, which means that the materials needed by a researcher may be available
in libraries, archives and other databases. Various types of books were used to acquire the
adequate data essential for this project. Moreover, online resources and research papers were
consulted to gather more varied information on the research topic.
 2. Termination of Pregnancy Without Spousal Consent as “Cruelty” and
a Ground for Divorce
Divorce laws in India do not recognize no-fault grounds of divorce.6 In contested cases, the
party seeking divorce has to prove that the other party engaged in wrong-doing as defined in
the grounds for divorce under the personal law governing that marriage. One such fault-based
ground in various divorce laws is that of treating one’s spouse with “cruelty.” For example,
Section 13(1)(ia) of the Hindu Marriage Act, 1955, provides for cruelty as a ground for divorce.

The Medical Termination of Pregnancy Act, 1971 (MTP Act) provides the legal framework
governing termination of pregnancies, as well as the procedure to be followed before such
termination. It does not require the doctor terminating the pregnancy to take the consent of the
spouse, in case of married women. Despite this, the question of whether spousal consent is
required for termination of pregnancy has arisen in many cases. For instance, in Dr. Mangla
Dogra v. Anil Kumar Sharma,7 the question before the Punjab and Haryana High Court was
whether the express consent of the husband is required before his wife’s pregnancy is
terminated. The court ruled that an unwanted pregnancy in the case of a married woman can
be terminated as per Section 3(2) of the MTP Act. Section 3(4)(b) of the Act requires only the
consent of the woman to be obtained. Consent of the husband is required by neither the MTP
Act nor the MTP Rules. The court also recognized the reproductive choice of the wife and ruled
that consent to sexual intercourse does not imply consent to give birth to a child conceived as
a result. The woman, the court held, is the best judge to decide whether to continue or terminate
the pregnancy. It ruled that the consent of the husband, either express or implied, is not required
to terminate the pregnancy under the MTP Act. The husband filed an appeal in the Supreme
Court against the decision of the High Court. The Supreme Court refused to entertain the appeal
and dismissed it.8 Consequently, the Court has approved the position taken by the Punjab and
Haryana High Court that the consent of the husband is not required for a woman to terminate
her pregnancy. More recently, the Supreme Court in Z v. State of Bihar,9 ruled that only the
consent of the woman is relevant under the MTP Act. The consent of the husband or father (in
case of adult women) is not required.10

6
Section 13B, Hindu Marriage Act, 1955; Section 28, Special Marriage Act, 1954; Section 10A, Indian Divorce
Act, 1869; Section 2 (ix), Dissolution of Muslim Marriage Act, 1939; Section 32B, Parsi Marriage and Divorce
Act, 1936.
7
Dr. Mangla Dogra v. Anil Kumar Sharma ILR (2012) 2 P&H 446.
8
Civil Appeal No. 4704/2013
9
Supreme Court in Z v. State of Bihar (2018) 11 SCC 572.
10
Supreme Court in Z v. State of Bihar (2018) 11 SCC 572.
However, cases have arisen where courts have granted divorce on the ground that termination
of pregnancy without the consent of the husband amounts to “cruelty.”11

The right to make free and informed decisions about health care and medical treatment,
including decisions about one’s own fertility and sexuality, is enshrined in Articles 12 and 16
of the Convention on the Elimination of all Forms of Discrimination Against Women (1978).12
Autonomy, the right to informed consent and confidentiality are considered the fundamental
ethical principles in providing reproductive health services. Autonomy would also mean that
when a mentally competent adult seeks a health service, there is no need for an authorization
from a third party.13 According to recent ethics guidelines in reproductive health research, even
use of the term “consent” has been restricted only to the person who is directly concerned; in
circumstances where partners are involved it is termed a “partner agreement”

Contrary to this Supreme Court judgment when hearing an appeal in the Ghosh vs. Ghosh
divorce case, the court ruled on March 26, 2007: “If a husband submits himself for an operation
of sterilization without medical reasons and without the consent or knowledge of his wife and
similarly if the wife undergoes vasectomy (read tubectomy) or abortion without medical reason
or without the consent or knowledge of her husband, such an act of the spouse may lead to
mental cruelty.”14 The court also ruled that a refusal to have sex with 2 one’s spouse and a
unilateral decision to not have a child would also amount to mental cruelty. Considering the
circumstances of the case, the court granted a divorce. The judgement has serious implications
for reproductive health services in India, because it mandates spousal consent for induced
abortion and sterilization. The judgement conflicts with the existing guidelines for medical
practice, and it is likely to confuse those who are seeking as well as offering these services. It
implies that when a woman seeks abortion or sterilization on her own and if her husband is not
informed or does not consent, the very act of the woman could be cited by her husband as
mental cruelty and grounds to seek a divorce. The judgement thus hits at the very core of
reproductive rights: taking a decision and seeking a service without fear of coercion or
violence. It is likely to set a wrong precedent and put many providers on guard, because they
would not want to be involved in legal tangles. Many clinics may start using this ruling to
impose a requirement of spousal consent. Even providers in the public sector may insist on a

11
Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.
12
CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, 1979.
13
World Health Organization, Safe abortion: technical and policy guidance for health systems, WOMEN'S HEALTH
JOURNAL, 2003.
14
Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.
spouse’s signature to avoid legal problems. The highest judiciary in the nation has to
demonstrate a better understanding and commitment to human rights, especially women’s
rights.15

3. Restitution of Conjugal Rights: Implications on Rights to Sexual and

Reproductive Autonomy and Health
Under the Hindu Marriage Act, if a husband or a wife has “withdrawn from the society” of the
other, without reasonable grounds, the other spouse may file an application before the court for
restitution of conjugal rights.16 If the court is satisfied of the truth of the allegations made, it
may decree restitution of conjugal rights. The Andhra Pradesh High Court in T. Sareetha v.
Venkata Subbaiah,17struck down Section 9 of the Hindu Marriage Act, holding it to be
unconstitutional. The Court ruled that a decree of restitution of conjugal rights implies
enforcing marital intercourse. This would improperly transfer the choice of the person to have
intercourse or not to the state, and at the same time transfer the choice of whether to procreate
or not also to the state. The High Court held that the provision violates the right to sexual
autonomy and bodily integrity of the individual to whom the decree is directed. In the case of
women, it also violates their reproductive autonomy. The Court ruled that Section 9 violated
the right to privacy of the individual since it invaded their zone of intimate decisions. A decree
of restitution of conjugal rights would imply forcing sex on an unwilling individual. It noted
that such forced/coerced sex violates the fundamental rights of the person. Coerced sex could
also lead to pregnancy, which would be a violation of the woman’s reproductive autonomy.

This, the Court held, violates the right to dignity and the right to privacy of the woman.
Consequently, a decree of restitution of conjugal rights was said to offend the guarantees of
life, personal liberty, and human dignity and decency under Articles 14, 19, and 21 of the Indian
Constitution. The Court added that “state coercion” of this nature was ineffective in preserving
or prolonging a matrimonial relationship. This case was, however, overruled by the Supreme
Court in Saroj Rani v. Sudarshan Kumar Chadha.18 The Supreme Court held that the Andhra
Pradesh High Court in T. Sareetha had misinterpreted the meaning of the term “conjugal.” It
held that the term pertains to the right of the spouses to the “society of the other.” This right, it

15
Rajalakshmi, Reducing reproductive rights: spousal consent for abortion and sterilization, 4(3) INDIAN
JOURNAL OF MEDICAL ETHICS, 2007.
16
Hindu Marriage Act, 1955, § 9.
17
T. Sareetha v. Venkata Subbaiah AIR 1983 AP 356.
18
Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90.
ruled, was inherent in the marriage itself. The Court held that Section 9 was only a codification
of pre-existing law and served a social purpose in ensuring that marriages do not break up.
Hence, if understood in the “proper perspective,” Section 9, the Court ruled, does not violate
Articles 14 and 21 of the Indian Constitution. In doing so, the Court referenced, and agreed
with the decision of a Single Judge of the Delhi High Court,19 wherein the court had held that
sexual intercourse, though an important element of a marriage, is not the ultimate goal of the
marriage. It ruled that a court cannot enforce sexual intercourse. The remedy of restitution of
conjugal rights, the Delhi High Court held, is to provide restitution for “cohabitation and
consortium” and “not merely sexual intercourse.”

A nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy — I v. Union of India,20
held that an individual’s right to privacy is a fundamental right, guaranteed under Articles 19
and 21 of the Indian Constitution. The Court ruled that sexual and reproductive autonomy, and
decisions relating to marriage and procreation, amongst others, form a part of the right to
privacy and dignity. Further, in Joseph Shine v. Union of India,21 the Supreme Court has
recognized the right of a married woman to retain her sexual autonomy. Hence, it is conceivable
that Section 9 of the Hindu Marriage Act may not survive a future constitutional challenge and
that the Andhra Pradesh High Court’s judgment in T. Sareetha may be revived.

4. Conclusion
India, as a signatory to the International Conference on Population and Development, 1994,
has committed itself to ethical and professional standards in family planning services, including
the right to personal reproductive autonomy and collective gender equality.22 Indian policies
and laws so far seem to reflect this understanding, at least on paper. The National Population
Policy, 2000, affirms the right to voluntary and informed choice in matters related to
contraception.23

In the overall analysis, State polity and judicial attitudes in India may be characterized as
utilitarian, seeking to achieve community interests in reducing population growth through
abortion laws and population policy. Although the basic philosophy guiding State action and

19
Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Del 66.
20
I v. Union of India (2017) 10 SCC 1.
21
Joseph Shine v. Union of India (2019) 3 SCC 39.
22
UNITED NATIONS INTERNATIONAL CONFERENCE ON POPULATION AND DEVELOPMENT (ICPD), 5-13 September
1994 Cairo, Egypt.
23
NATIONAL COMMISSION ON POPULATION, GOVERNMENT OF INDIA: NATIONAL POPULATION POLICY, 2000.
Available at http://mohfw.nic.in/natpp.pdf.
judicial pronouncements is clear, the area of reproductive rights in the Indian context remains
one of confusion and contradiction

Reproductive health and right to reproductive health is not only women issue it is a family
health and social issue. The ultimate aim of the right to reproduction is well being of the family
and individuals. At the same time, it becomes the responsibility of the governments to give
quality reproductive health care and protect the individual reproductive rights while being
sensitive to local and cultural issues. There is increased need for sensitization of the judicial
and government while protecting the reproductive rights of people with disability especially
mental retardation and mental illness. There is also increased need for sensitization of judicial
system on process of consent to abortion. To ensure quality reproductive health services, there
is need for active community participation and involvement of men (spouse).
5. BIBLIOGRAPHY

• BOOKS
▪ FLAVIA AGNES, FAMILY LAW II: MARRIAGE, DIVORCE AND MATRIMONIAL
LITIGATION:2, (Oxford, 2011).
▪ M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (Lexis Nexis, Gurgaon,
2010).
▪ V.N SHUKLA, CONSTITUTION OF INDIA, (Eastern Book Company, Lucknow,
2013).

• ONLINE RESOURCES
▪ NATIONAL COMMISSION ON POPULATION, GOVERNMENT OF INDIA: NATIONAL
POPULATION POLICY, 2000. (http://mohfw.nic.in/natpp.pdf)
▪ Rajalakshmi, Reducing reproductive rights: spousal consent for abortion and
sterilization, 4(3) INDIAN JOURNAL OF MEDICAL ETHICS, 2007.
▪ World Health Organization, Safe abortion: technical and policy guidance for
health systems, WOMEN'S HEALTH JOURNAL, 2003.
▪ CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST
WOMEN, 1979.