Conjugal rights before Supreme Court

Source: Indian Express 

Relevance – Laws related to marriage are very important to save individual’s from exploitation. All obsolete laws must be reconsidered.

Synopsis:

A petition has been filed in the Supreme Court (SC) challenging a provision in the Hindu personal law related to the restitution of conjugal rights.  As per the petition, a grave violation of sexual and privacy rights happens whenever the right to restitution of conjugal rights is exercised by one spouse over another.

Background:

In the coming week, the SC  may hear a fresh challenge to the provision allowing restitution of conjugal rights under Hindu personal laws. In 2019, a three-judge Bench of the Supreme Court had agreed to hear the pleas.

About Conjugal Rights:

• They are rights created by marriage, i.e. the right of the husband or the wife to the society of the other spouse. 
• The law 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.
• 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• Incidentally, in 1970, the United Kingdom repealed the law on restitution of conjugal rights.

What is the provision under challenge?

• Section 9 of the Hindu Marriage Act, 1955, deals with restitution of conjugal rights and is under challenge.
• It states that when either the husband or the wife has withdrawn from the company of the other without a reasonable cause, then the aggrieved party may apply for restitution of conjugal rights. This provision requires a person to cohabit with another against their will.
• A petition for restitution can be filed in district court. The court, after being satisfied with the truth of such a petition or absence of legal ground to forbid restitution, may decree restitution of conjugal rights accordingly.
• 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. The provision is seen to be an intervention through legislation to strike a conciliatory note between sparring spouses.

Why has the law been challenged?

• Section 9 violates the fundamental right to privacy which is now a fundamental right under article 21 of the constitution. 
• Further, 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.
• Although the law is 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.

What has the court said about the law earlier?

• In 1983, the Andhra Pradesh High Court (HC) and the Delhi HC delivered opposite judgments on the restitution of conjugal rights.
  • The Andhra HC struck down the provision in the case of T Sareetha v T Venkatasubbaiah and declared it null and void. 
  • The Court said it violated privacy rights and recognised that compelling “sexual cohabitation” would have “grave consequences for women”.
  • However, the Delhi HC upheld the provision in the case of Harvinder Kaur v Harmander Singh Chaudhry. 
  • The court said 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.
• Later, in 1984, the Supreme Court upheld Section 9 of the Hindu Marriage Act in the case of Saroj Rani v Sudarshan Kumar Chadha. It said that the provision “serves a social purpose as an aid to the prevention of break-up of marriage”. 
• Thus, the Supreme Court upheld the Delhi High Court view and overruled the Andhra Pradesh High Court verdict.

Conclusion:

Although the provision of restitution of conjugal rights has been upheld in the past, legal experts have pointed out that the landmark verdict in the privacy case has set the stage for potential challenges to several laws. This includes criminalisation of homosexuality, marital rape, restitution of conjugal rights, the two-finger test in rape investigations, and others.