IS RESTITUTION OF CONJUGAL RIGHTS HELPING IN MARITAL RAPE?

INTRODUCTION
An important thing for a healthy relationship between any two people is respecting their choices,
and an important thing for a relationship between a husband and a wife is consent in mutual
agreement on life decisions. A happy conjugal life differs from a forced and obligatory conjugal
life of consent from each other at important times of life. Marital rape or spousal rape is one
such instance where not taking consent can be a reason for strained life. Marital rape is an act of
sexual intercourse without the consent of then marriage partner. Marital rape may be considered
equal to domestic violence and sexual abuse despite the fact that it may not necessarily include
any kind of violence. Just the absence of consent from the wife may constitute marital rape even
if the wife is above the age of 18 years. Marital Rape may constitute all those incidents where
the wife is unable to give valid consent or has refused to give consent or when her consent is
taken by force, and the husband had sexual intercourse with her. The term rape has been defined
in section 375 of the Indian Penal Code and the exception of proviso of section 375 of the Indian
Penal Code 1860 says that “Sexual intercourse or sexual acts by a man with his wife, the wife
not being under fifteen years of age, is not rape” It was laid down in the case of Independent
thought v Union of India1 as decided on October 11, 2017. Marital Rape in India is not given a
status of crime as laid down in the above case. The other part of this research paper emphasizes
on l“the restitution of conjugal rights”. Many provisions of the Indian personal law provisions
have explained the restitution of conjugal rights. The restitution of conjugal rights is defined in
Section 9 of the Hindu Marriage act, 19552, section 22 of the Special Marriage Act,19543, and
Order XXI Rule 32(1) of CPC. One of the most fundamental requirements of marriage is that the
wife and husband should respect each other's rights and live together. A legal provision that
allows the wronged person to resume cohabitation lawfully against a wife or husband who

1
(2017) 10 SCC 800
2 Restitution of conjugal rights.- When either the husband or the wife has, without reasonable excuse, withdrawn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.
3 Restitution of conjugal rights.—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
withdrew without justification is "Restitution of Conjugal Rights"45. The legality of the
Restitution of conjugal rights has been challenged in many instances; first it was challenged in
the Andhra Pradesh High Court in the Case of T. Sareetha v. Venkata Subbaiah5. Here the court
held that “A Court decree enforcing restitution of conjugal right constitutes the starkest form of
governmental invasion of personal identity and individuals' zone of intimate decisions. The
victim is stripped of control over the various parts of her body and subjected to humiliating
sexual molestation accompanied by a forcible loss of the precious right to decide when all her
body should be allowed to be used to give birth to another human being. Clearly, the victim
loses its autonomy of control over intimacies of personal identity”. But in the future, cases of the
Hon’ble Delhi High Court and Hon’ble Supreme court of India were said differently and the
above-mentioned case of Andhra Pradesh High Court was completely ruled over by the cases of
Harvinder Kaur v. Harmander Singh Choudhary6 and Saroj Rani v. Sudarshan Kumar Chadha7.

RESTITUTION OF CONJUGAL RIGHTS AND MARITAL RAPE

As restitution of conjugal rights defined in the Hindu Marriage Act and the Special marriage act
allows the courts to pass a decree to perform the marital obligations if not already performed by
a party in the marriage. But is it the whole story? As stated by the Hon’ble Delhi High Court in
its case of Harvinder Kaur v Harmander Singh8 “The leading idea of S. 9 is to preserve marriage.
From the definition of cohabitation and consortium, it appears that sexual intercourse is one of
the elements that go make up the marriage. But it is not the summum bonum. The Court does not
and cannot enforce sexual intercourse Sexual relations constitute a most important attribute of
the conception of marriage.” India is a country where marital rape is not considered an offense
and coercing the parties to cohabit together and perform their marital obligations even though
they do not want to live together, puts the fundamental rights of parties at grave risk of being
violated. This idea of the high court shows that forced sexual relations between the parties may
not be the only idea of this statute, but somewhere its implied meaning is causing such harm to
the relationship. For instance, a wife leaves her matrimonial home because her marriage was

4 Mulla, Hindu Law (Lexis Nexis, 23rd edn., 2018)

5 SCC OnLine AP 90
6 (1984) 1 AP LJ 8 (DNC) (Del).
7 (1984) 4 SCC 90.
8 Supra note 6.
forced by her parents and she had to comply with it because of their orthodox feelings and she is
not at all interested in such a marriage or any sexual relation with her husband. Such a marriage
neither gives a ground for nullity of marriage nor provides a ground for voidable marriage. In
such a marriage the parties to the marriage would never be happy and if the husband files a
petition under section 9 of the Hindu Marriage Act and Order XXI Rule 32(1) of CPC the court
would not see a valid ground for desertion by the wife and they may pass a decree in the favour
of the husband due to which the wife may have to be in such a relationship and fulfil her marital
obligations towards her husband and if she doesn't do so then she has to face another execution
petition from her husband, and on the other hand if she does she might have to be in a
relationship where she would have to face mental agony and maybe marital rape too. All because
of not being proper legislation in force to prevent her from being violated. Marriages in Hindu
law are considered a sacrament and on that ideology, the whole concept of restitution of conjugal
rights is based.

NEW LAWS EVOLVING TO PROTECT THE RIGHTS OF WOMEN

Marital Rape either due to restitution of conjugal rights or due to any other reason is now seen as
an issue affecting to the autonomy of women and not treated by saying that women should
“compromise” to make her Husband satisfied. Recently on Dec 10th, 2022 a private member’s
bill was presented in the Rajya sabha by Trinamool Congress Rajya Sabha Leader Derek
O’Brian to criminalize marital rape. Introducing the Indian Penal Code (Amendment) Bill 2022,
Derek Told the upper house that the bill “reflects the realities of sexual abuse today against
women and removes the exception of marital rape from the definition of rape……. The
exception of marital rape is antiethical to right to life and personal liberty under Article 21.This
bill seeks to ensure women a dignified life, safe living conditions and her own right to
reproductive choices and privacy”9. For the time being only the common law gives something
rigid which might be used for justice for women.In a judgment of the Karnataka High Court, the
court refused to drop the charges of against the husband despite of the immunity provided by the
exception of section 375 of IPC on the ground that a marriage cannot confer any special male

9
“ Trinamool Congress Rajya Sabha leader Derek O’Brien moves bill to criminalize marital rape”, Times of India,
10th December 2022, available at https://timesofindia.indiatimes.com/city/kolkata/derek-moves-bill-to-criminalise-
marital-rape/articleshow/96123526.
cms (28th December 2022)
privilege for unleashing of a brutal beast. On 9th May Delhi High Court Gave a split verdict by
a two judge bench of Justice Rajiv Shakhder and Justice C. Hari Shankar. According to justice
Shakhder Section 375 is violative of the fundamental rights given under Article 14 but Justice
Shankar disagreed with the statement and upheld its validity.The first petitions to criminalise
marital rape were filed in Delhi High Court in 2015. In 2017, the central government filed an
affidavit in the case, saying that criminalising marital rape “may destabilise the institution of
marriage” and become a potential tool for harassing husbands.8
THe Domestic Violence Act,2005 gives protection to women from any kind of harassment and
abuse and hints on marital rape in a live-in or marriage relationship but the problem lying under
this is that victims under this canfile complaint under civil suit, they can not file a complaint
under any criminal complaint and thus cannot initiate any criminal proceedings against their
perpetrator.
Justice J S. Verma Committee was formed in 2012 after the Nirbhaya gang rape case9 to make
and protect the rights of women and to make amendments to indian rape laws.According to
Amnesty International data, 77 out of 185 (42%) countries criminalize marital rape through
legislation. In other countries, it is either not mentioned or is explicitly excluded from rape laws,
both of which can lead to sexual violence.10

SHOULD IT BE PENALIZED?
Being married to a woman does not give a man a “get out of jail free card” everytime he
infringes the right of privacy in the guise of matrimonial bond. Many a time bills were tried to be
passed by the members of parliament but due to some reason or the other, the bill is never passed
to criminalize marital rape and to remove exception 2 of section 375 of IPC. In a recent

8
Priyali Prakash,”Marital rape in India: The history of the legal exception”,The hindu, 12 May 2022, available at
https://www.thehindu.com/news/national/explained-marital-rape-in-india-the-history-of-the-legal-exception/article6
5404106.ece (28-12-2022)
9 Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1
10 Supra Note 10
judgment of the Hon’ble Supreme Court of India constituting a bench of CJ, D.Y. Chandrachud,
J, A.S.
Bopanna and J, J.B. Pardiwala gave a 75 page long verdict and gave an interpretation of section
3B(c)11. The court said that “The ordinary meaning of the word ‘rape’ is sexual intercourse with
a person, without their consent or against their will, regardless of whether such forced
intercourse occurs in the context of matrimony. A woman may become pregnant as a result of
non-consensual sexual intercourse performed upon her by her husband. We would be remiss in
not recognizing that intimate partner violence is a reality and can take the form of rape. The
misconception that strangers are exclusively or almost exclusively responsible for sex- and
gender-based violence is a deeply regrettable one. Sex- and gender-based violence (in all its
forms) within the context of the family has long formed a part of the lived experiences of scores
of women.”12 Recently a judgment of the delhi High Court gave a split verdict for criminalizing
marital rape heard by a division bench before Rajiv Shekhdar and C Harishankar, JJ.13 “The
nature of sexual violence and the contours of consent do not undergo a transformation when one
decides to marry. The institution of marriage does not influence the answer to the question of
whether a women has consented to sexual relations. If the woman is in an abusive relationship,
she may face great difficulty in accessing medical resources or consulting doctors….”
Justice Shankar said in the light of above that “women don’t mind being raped by their husband
all that much and that the trauma of being raped by her husband cannot match the trauma being
assaulted by a stranger.” On the other hand Justice Shakdher, in his decision observed that “Rape
is a rape and rapist remains a rapist: no amount of classification and verbal jugglery can alter that
reality. Notably, every woman including sex worker is entitled to decline consent and prosecute
for rape; a right which is not available to a married women”14
CONCLUSION
Finally what the study reveals is that restitution of conjugal rights, a provision made to ensure
that a marital relation between two people is a sacrament and Section 9 of HMA, 1955 and

11 Medical Termination of Pregnancy Rules, 2003

12 X v. Health & Family Welfare Department, 2022 SCC OnLine SC 1321
13
RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572
14 Dushyant, “Husbands should not get a free pass when it comes to rape”, Times Of India, December 14,2022,

available at https://timesofindia.indiatimes.com/india/husbands-should-not-get-a-free-pass-when-it-comes-to-
rape/articleshow/9 4658306.cms (30-12-2022)
section 22 of Special Marriage Act, 1954 aims to retain a marriage through a judicial decree. But
in reality it somehow leads to exploitation of the fundamental rights of a woman and the
autonomy over her body. Marital rape in India might not be an offense right now but in future
the judicial precedents and bills formed by the parliament may emerge. Many cases are pending
before the courts to rectify the 4000 year old code which governs us till date.