Constitutional Validity of Conjugal Rights

By Barkha Singh

Introduction

"True freedom requires the rule of law and justice and a judicial system in which the rights of
some are not secured by the denial of rights to others."

-Jonathan Sacks

Conjugal rights are rights created by virtue of an alliance between two consenting adults who
decide to spend their lives together, bound by a socially and legally acceptable pact called a
marriage. In this article, we seek to deal with one specific aspect of conjugal rights: the right
to consortium and how this right is fortified by allowing the spouses to move Court to enforce
it. This conjugal right can be found in all personal laws and thus applicable to all marriages
irrespective of religion. The constitutional validity of conjugal rights has been persistently
questioned over the decades. The debate has been centered around how it disproportionately
impacts women and how can a colonial provision continue to be held valid in the contemporary
progressive world where marriage as an institution is being redefined. Law is not objective,
and a formalistic reading of law conceals the inherent injustice and chauvinism of the ones
involved in law-making. Thus, a law that purports to be gender-neutral but in effect
inordinately favors one gender or group in a marriage cannot be left unscrutinised.

This article explores various facets of conjugal rights, their origins, and their constitutional
validity. It attempts to fathom the various debates around its pros and cons and how the legal
fraternity canvassed it over the decades. The article aims to look into the facts, implications,
and underlying assumptions that more often than not stay unperceived by the oblivious society.

Conjugal Rights under various Personal laws

Conjugal rights arise out of marriage; these are a set of rights and obligations that the spouses
are conceived to have in a marriage recognized by law. The discussion of this article is around
one particular type of conjugal right, which is the right of spouses to cohabitation and access
to each other's society. This right is delineated under Section 9 of Hindu Marriage Act, 1955
for Hindus, Section 32 of Indian Divorce Act, 1869, which applied to Christians, Section 282
of Mohammedan law, Section 22 of Special Marriage Act, and Section 36 of Parsi Marriage
and Divorce Act, 1936.

Section 9 of the Hindu Marriage Act, 1955 provides that when either the husband or wife has,
without any reasonable excuse or legal ground, withdrawn from the society of the other, the
aggrieved party has the right to apply by petition to the district court for restitution of conjugal
rights. If the Court is satisfied with the validity of the statements expressed in the petition, it
may choose to decree the restitution of conjugal rights.

Requisites to be fulfilled for a petition of conjugal rights to be entertained:

1. The marriage must be legally valid

2. It needs to be established that the spouses are not cohabiting
3. The withdrawal of the party in question is without any reasonable excuse or legal
ground
4. The petitioner has a bona fide desire to live with the spouse

The basis on which a petition for restitution of conjugal rights can be rejected.

1. If the petitioner confesses to committing any marital misconduct

2. If the respondent is eligible for any matrimonial relief
3. If the actions and behavior of the petitioner have been established to be unconducive
for a marital relationship.
4. If the spouses need to stay separately for the purpose of employment.
5. Cruelty on the part of husband or in-laws.
6. On the failure by the petitioner to have fulfilled conjugal obligations
7. Any ground of such nature on which the respondent could have asked for the nullity of
marriage, decree for judicial separation, or divorce.
8. In the case of Islamic law, on non-payment of a quick dower by the husband

Where separation is brought by due to exigencies of work or if husband and wife are living
separately but continue maintaining a relationship cannot qualify as instances of withdrawal
from society. However, it may qualify as withdrawal even while the parties are residing under
one roof.

The burden falls on the petitioner to prove that the respondent has withdrawn from the society
of the petitioner. The actual burden lies on the respondent. But The respondent has to prove
that there is a reasonable excuse or legal ground as to why the respondent's withdrawal from
the other spouse's society was justifiable.

Execution of the Decree

In case the Court finds that there are no reasonable grounds for the respondent to have
withdrawn from the society of the other spouse. It would, after being satisfied with the
intentions of the parties, grant a decree for restitution of conjugal rights. The judgment-debtor
will have a period of one year to honor the decree.

The mode of execution for a decree of restitution of conjugal rights has been enumerated under
Rule 32 and rule 33 of the Civil Procedure Code, 1908. According to Rule 32, the Court may,
in the course of execution of the decree, attach the property of the respondent, and if within a
year the decree is not acted upon, the Court can sell the property. Out of the sale proceeds, the
Court has the ability to award compensation to the petitioner as it deems fit. Rule 33 comes
into action in cases where the wife is the petitioner and would involve the husband being
ordered to pay a fixed sum of money periodically if the decree is not compiled. The wife can
also claim maintenance under Section 25 of the Hindu Marriage Act, 1955 during this period
of separation.

Conjugal Rights Vs. Judicial Separation and Divorce

If in a given case, the decree for restitution of conjugal rights is passed, it will not be a nullity,
and if not challenged by appeal or other matrimonial remedies available, then it becomes final.
Thus, such an order cannot be ignored, and if the judgment-debtor fails to take action upon the
decree passed, it can also form a valid ground of divorce proceedings.

Either party can seek judicial separation if they do not wish to cohabit but are unwilling to
exercise the option of divorce. The parties can continue to live alienated without it affecting
the legality of the marriage. A judicial separation petition can also act as a defense to a petition
for restitution of conjugal rights. If the concerned parties to the suit continue their separation
for a period of one year or more, it qualifies as a ground for divorce
When it comes to a petition for divorce, the general consensus is that the two petitions are
mutually destructive of each other as a decree for restitution of conjugal rights is an opportunity
to be reunited with one's spouse, which stands in sharp contrast to a divorce. However, the
marital laws are devoid of any concrete ruling on this purpose

The Not So Archaic Origins

Restitution of conjugal rights originated from Jewish law and reached India through the British
during the oppressive colonial rule as in Britain during those centuries, the wives were treated
as the chattel of husbands. The matrimonial remedy of conjugal rights was neither recognized
by the Dharmashastras nor did the Islamic law make any provisions for it.

The argument concerning tradition and how the institution of marriage is understood does not
stand as it was not our creation, to begin with. Hinduism regards man and woman as the two
halves of the eternal being, each constituting a part, quite incomplete in itself. In the
Brihadaranyaka Upanishad, Prajapati, the Hindu primordial God, divides himself into two-man
and women, the symbols of cosmic polarity deriving sustenance from the same source. Neither
of the genders is considered superior to the other.

Nowhere do the Vedas say that woman is a man's property. This is evident from the sukta of
Surya's bridal in the Rig Veda: Enter your house as the household's mistress. May authority in
speech ever be yours!' 10.85.26).' Watch over this house as mistress of the home. (10.85.27).
'Here dwell ye, be not parted; enjoy full age, play and rejoice with sons and grandsons in your
own house' (10.85.42). 'Act like a queen over your husband's father, over your husband's
mother likewise, and his sister. Overall your husband's brothers be queen' (10.85.46). But she
came to be proclaimed as the property of the man during specific periods of history. She
continued to be treated like one within the four walls and under archaic laws that continue to
exist, whether marital rape or conjugal rights.

This avowed remedy was inherited from the British colonial rule and several other laws that
have been required to be struck down over the decades. It is intriguing to note that it has been
expunged by Britain in 1969 and consequently by several other Commonwealth nations,
whereas the Indian State has not.

Past Judicial Developments

The concept of Conjugal rights was first introduced in India in the case of Moonshree Buzloor
Ruheem vs. Shumsoonissa Begum, where action for conjugal rights was regarded as
consideration for specific performance as marriage under Islamic law is a civil contract. In pre-
independence India, one case that calls for attention is Dadaji Bhikaji vs. Rukhmabai of 1885.
In this case, a 22-year-old Rukhmabai refused to cohabit and solemnize the marriage with her
husband that had taken place when she was a minor, 11yearsold. Judge Robert Pinhey in 1887
had reached the opinion that the husband cannot maintain his action as it would be a cruel and
barbarous thing to compel a young lady into solemnizing a child marriage. In the aftermath of
the political and social turmoil going on, and the public sentiments around British interference
in customs and religion after the first war of independence of 1857, on appeal, Justice Bailey
reversed the decision, and in a fresh trial, Judge Charles Farran ruled in favor of the husband.
However, Rukhmabai reached a mutual agreement with her husband, arose over the patriarchal
system, and went to London to study medicine, becoming India's first female practitioner.
Currently, so many Rukhmabais are forced to unwillingly cohabit with their husbands who
otherwise are threatened to face forfeiture of property.

After independence, in the case of Saroj Rani v Sudarshan Kumar Chadha of 1984, the Supreme
Court of India upheld Section 9 of the Hindu Marriage Act, 1955 by arguing that this provision
served a social purpose as an aid to prevent the breakup of marriages and hold the society
together. Leading up to this issue, the high courts of Andhra Pradesh and Delhi had ruled
differently on the issue.

In 1983, a single-judge bench of the Andhra Pradesh High Court had for the first time struck
down the obsolescent provision in the case of T Sareetha v T Venkatsubbhaiah and declared
the provision on conjugal rights null and void. Justice P Choudary had cited the fundamental
right to privacy, among other reasons. The Court also argued against state interference in
intimate matters of the citizenry. Here, Justice P Choudary had most importantly also
recognized that the compelling "sexual cohabitation" would be of grave consequences for the
women. However, around the same time, in Harvinder Kaur v Harmander Singh Chaudhry,
Delhi High Court held a diametrically opposite view of the law.Over the years, this judgment
has been questioned for uploading the primacy of children's interests and state welfare in
matters intimate over individual privacy and liberty.

Constitutional Validity
The law on conjugal rights is being challenged now on the main grounds that it is violative of
the fundamental right to privacy. The pending plea in the Supreme Court by two law students
argues that court-mandated restitution of conjugal rights amounts to a "coercive action" on the
part of the State, as it is violative of one's sexual and decisional autonomy and right to privacy
and dignity under Article 21 of the Constitution.

While examining a law, it should not be forgotten that law is not value-neutral. No law is
objective, and under every law formulated lies a web of assumptions, prejudices, and any
attempt to proselytize preconceived notions and ideologies of the dominant groups who are
primarily involved in law-making. The law is required to be read in spirit rather than in letter.
Although the law on conjugal rights is ex-facie ('on the face of it') gender-neutral as it allows
both the husband the wife to move the Court for restitution of conjugal rights, the provision
disproportionately affects women. The courts should use the test of 'direct and inevitable
consequence' in their examination of conjugal rights. Conjugal rights under all personal laws
in place consist of two key ingredients- cohabitation and sexual intercourse. Through
provisions like conjugal rights, he or she becomes capacitated to coercive measures in case the
spouses wilfully disobey the decree of restitution.

In light of the judgments passed over the last three decades concerning the right to privacy and
dignity, the various provisions on the conjugal right fail the test of time. In 2017, a 9-Judge
Bench of the Supreme Court in Justice K.S. Puttaswamy vs. Union of India affirmed that the
Constitution of India guarantees each individual a fundamental right to privacy. In the above
case, the Supreme Court had upheld an individual's right to privacy and right to autonomy over
their body. Hence, it is in consonance with Andhra Pradesh's1984 decision on an individualistic
conception of one's privacy.

Implications For Women

"Male dominance in society always means that out of public sight, in the private, ahistorical
world of men with women, men are sexually dominating women."

-Andrea Dworkin

In the judgment of Joseph Shine vs. Union of India of 2019, the honorable Supreme Court had
laid great emphasis on the right to privacy and bodily autonomy of married women stating that
marriage does not take away a women's sexual freedom or choice. The question remains if
every individual is inherently entitled to their bodily autonomy, right to choose, and right to
privacy, how can a court mandate two adults to cohabit if one of them does not wish to do so,
and can a marriage be really preserved out of the forceful consortium.

The various sections enforcing conjugal rights has been argued to be violative of article 14, 19,
and 21 of the Constitution. In Shakila Banu v. Gulam Mustafa, the Hon'ble High Court
observed: "The concept of restitution of conjugal rights is a relic of ancient times when slavery
or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India
came into force, which guarantees personal liberties and equality of status and opportunity to
men and women alike and further confers powers on the State to make special provisions for
their protection and safeguard." In a largely man-dominated society, the advantages of different
laws and remedies are usually reaped by men because of economic dependence and
sociological pressure, among other factors. There is an obvious quality because, in the majority
of instances, the wife is put in an unfavorable situation. Equality, in essence, implies equality
of thought, actions, and self-realization. But the continuation of this remedy leads to unwanted
pregnancies and violates women's liberty, privacy, and individual autonomy.

The Supreme court's argument in its 1984 judgment that the only objective of a decree for
restitution of conjugal rights does not stand according to many. Perhaps it was not realized by
the Supreme Court that the barbaric and deplorable practice of marital rape is legal in India.
The decree for restitution of conjugal rights efficiently puts a wife under the pressure of forceful
sex with her husband. It simultaneously strips her of physical autonomy, dignity, and the liberty
to make her own choices relating to her own life and body by submitting a wife against her will
to "forced cohabitation" and "consortium."

In Kharak Singh vs. State of UP, Justice Subba Rao had rightly said that "any definition of the
right to privacy must encompass and protect the personal intimacies of the home, family,
marriage, motherhood, procreation, and child-rearing." The argument by the State in support
of conjugal rights based on its social purpose of upholding marriage as an institution cannot
stand without taking into account how marriage has come to be redefined. In the Twenty-first-
century, modern theories of marriage are leaving behind the ideas of marriage being sacred and
unimpeachable. They are embracing the argument that spouses should be class equals joined
by private affection and do not require public sanction.

Restitution of Conjugal Rights is based on a noble cause but has lost its relevance with the
evolving times and social scenarios, and it does not produce the required impact. While we talk
about gender equality and the gender-neutral quality of the law, women are still at a
disadvantage in Indian society, and this provision capitalizes on it. Dowry deaths plague society
and women continue to be emotionally and mentally manipulated and tortured for dowry are
aplenty. When such wives, tired and broken by cruelty, leave the husband's house, a decree of
restitution of conjugal rights acts as a nose around their necks.

The Andhra Pradesh High Court, in its judgment, had quoted the landmark United States
Supreme Court decision in the case of Eisenstadt vs. Baird, 405 U.S. 438(1972): "If the right
of privacy means anything it is the right of the individual, married or single, to be free from
unwanted governmental intrusions into matters so fundamentally affecting a person as the
decision whether to bear or beget a child." When a decree for restitution of conjugal rights is
enforced, the life pattern of the wife is more likely to be altered irretrievably. On the other
hand, the husbands can remain almost as before because it is the wife who has to beget and
bear the child.

Also, whether the petitioner is the husband or wife, the section states that the onus is on the
spouse who withdrew from the others' society to prove their reason is reasonable. Any form of
abuse is hard to prove; bruises fade, sometimes scars heal, and often the abuser leaves no mark.
And unequivocally, when the same cruelty becomes emotional and mental, it becomes close to
impossible to prove

Leading legal scholars have argued that this section does not pass the scrutiny of our
Constitution but holds on to the baseless, illogical argument of family law falling outside the
purview of the Constitution and about marriage being above all else. The Court or the
government cannot arbitrarily decide which matters of the private sphere fall within the judicial
scrutiny and which do not. At the same time, the line between the public sphere open for state
intervention and the private sphere, which stands on the importance of privacy of an individual,
needs to be defined.

International Status

Countries ranging from Britain, Ireland, Australia to South Africa have struck down provisions
relating to restitution of conjugal rights. The importance of the right to the self-sexual
determination of women is increasingly being recognized as crucial to women's rights. In 2012,
High Commissioner for Human Rights Navi Pillay stated: "Violations of women's human
rights are often linked to their sexuality and reproductive role. (...) In many countries, married
women may not refuse to have sexual relations with their husbands and often have no say in
whether they use contraception. (...) Ensuring that women have full autonomy over their bodies
is the first crucial step towards achieving substantive equality between women and men.
Personal issues—such as when, how and with whom they choose to have sex, and when, how
and with whom they choose to have children—are at the heart of living a life in dignity."

Recent studies suggest that the global cost of violence against women stands at approximately
USD 1.5 trillion. India is a signatory to the Convention on the Elimination of ALL Forms of
Discrimination (CEDAW), 1979, having ratified it as early as 1993. Thus, India is bound by
its obligation arising from the Convention to prioritize eliminating all forms of gender-based
violence against women. In this regard, Article 15 clause 1(equality before the law) and Article
16 (measures to eliminate discrimination against women in all matters relating to marriage and
family relations) of the Convention come into play. According to international conventions and
obligations, the restitution of conjugal rights needs to be examined.

Conclusion

An alternate remedy to restitution of conjugal rights to protect the institution of marriage can
be that the spouses should be allowed to undergo mediation sessions where the mediator shall
make every effort to protect their marriage. However, to ensure that gender-based violence is
not inflicted on women, these methods should only be allowed in accordance with the 'free
consent of the victim, which is to be analysed by a special team instituted for that purpose. For
centuries, women have survived under laws traditionally made by men for men. Excluding
women's voices on laws that impact their lives makes little sense. A law cannot be oblivious to
its ramifications and needs to recognize how it affects various parties, individually as well as,
as a whole.

About The Author

Barkha Singh is a second-year student pursuing B.A.LLB(Hons) from NALSAR University of

Law, Hyderabad. She is an avid reader and has an analytical mind. She has a keen interest in
corporate law and international relations.

References
1. Hindu women as a life partner - eSamskriti. https://www.esamskriti.com/essay-
chapters/Hindu-women-as-life-partner-1.aspx
2. Justice for all. "True freedom requires the rule of law ....
https://rleeb02.medium.com/justice-for-all-69c9918b73e2
3. Explained: Conjugal rights before the Supreme Court ....
https://indianexpress.com/article/explained/explained-conjugal-rights-before-
supreme-court-7411007/
4. Restitution of Conjugal Rights: An Anathema to Human ....
https://oxfordpoliticalreview.com/2020/10/14/restitution-of-conjugal-rights-an-
anathema-to-human-rights/
5. Restitution of Conjugal Right: A Comparative Study Among ....
https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-
study-among-indian-personal-laws/
6. Constitutional Morality As A Challenge.
https://www.lawyersclubindia.com/articles/constitutional-morality-as-a-challenge-
13605.asp
7. Constitutional Validity of Restitution of Conjugal Rights ....
https://ccrd.vidhiaagaz.com/constitutional-validity-of-restitution-of-conjugal-rights/