“Laws must evolve with time if societies are to progress.”
It is undisputed that the application of legal provisions and rules are greatly influenced by the existing beliefs and assumptions of a society. With the changing notions of “gender equality” and “neutrality”, comes an immense need to reform several laws and their application to facilitate the much needed ‘progress’ through legal reforms.
One area where patriarchy and gender-based roles are deep-rooted is in the laws surrounding the institution of marriage. These laws have often been shied away from reform as they fall within the “private domain” and are often driven by religious beliefs. This has had an insidious effect on the rights of the women who have been subjected to varying standards under these laws, as compared to men.
One such law which imposes a duty on the courts to promote reconciliation in order to preserve the marital bond is the restitution of conjugal rights. These provisions pertaining to restitution of conjugal rights are present under the Hindu Marriage Act and the Special Marriage Act. These provisions appear to be gender-neutral as they were initially added with the intent of serving as a remedy to any party whose spouse has deserted them without a reasonable cause and. However, due to the unequal power structure in a martial bond in India, the application of this provision has often placed a disproportionate burden on women and violated their fundamental rights.
CONJUGAL RIGHTS AND THEIR APPLICATION UNDER THE LAW
Conjugal rights are the rights that emerge as a result of a marital bond. They stem from the idea that the husband and wife have a right to the society of the other spouse. The provisions have been added under Section 9 of the HMA and Section 22 of the SMA as a remedy to any spouse who has been deserted by the other without a reasonable excuse. Though this law has been codified under Hindu law and several other personal laws, its origin can be traced back to colonial times when the wife was treated as the “property of the husband.”
A textual reading of the provisions for the restitution of conjugal rights under the two Acts highlights three main aspects under these provisions –
- The provision seeks to provide a remedy to both spouses equally.
- The withdrawal by a spouse from the society of the other should be without reasonable excuse.
- The burden of proving a reasonable excuse shall be on the person who has withdrawn from society.
While on the first reading the provisions might seem reasonable and gender-neutral, there exist a lot of ambiguities that influence the application of the right. For instance, words such as “withdrawal” and “reasonable excuse” have been left open to interpretation leaving space for bias to find a place in the application of the provisions. This ambiguity raises several doubts as to in which cases these provisions can come into place. Will the withdrawal of a wife from the physical society of the husband to pursue an occupation amount to “withdrawal without reasonable excuse”? Does a threat to bodily and sexual autonomy of the wife amount to “reasonable excuse” despite marital rape not being penalized in India?
In Mulla’s Hindu Law, it has been stated: “A wife’s first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection.” Adding onto this view, the Punjab and Haryana High Court in the case of Tirath Kaur v. Kripal Singh held that the wife is not entitled to a separate residence for the purpose of pursuing a job unless there is reasonable misconduct on the part of the husband to maintain her in his own place. Here, the Court built on the principle laid down in Mulla and held that a refusal by the wife to leave her job and return to the husband’s society amounted to “withdrawal from society with a reasonable cause”. However, this interpretation was not followed by many other high courts in following judgements. This highlights the inconsistent approach in the application of the provision and the possibility of a regressive approach in its application. Due to this reason, a seemingly gender-neutral provision has had disproportionate effects on its application threatening the right to equality and life of women.
The third important aspect of restitution of conjugal rights places a burden on the spouse that has withdrawn from the society of the other to prove the reasonable excuse. This has often disproportionately affected women in the cases where the desertion is not voluntary but due to the actions of the husband making it impossible for the wife to cohabit in his society. In cases where the causes for desertion are dowry demands, cruelty, domestic violence or marital rape, the burden to prove this before the court would lie on the wife. It has often been observed that such acts which often occur behind closed doors are difficult to prove due to the lack of evidence. Therefore, this can lead to the wife being unable to satisfy before the court the standard of a “reasonable excuse” resulting in the court directing her to return to the abusive society of the husband.
Further, the courts also have the power under Order 21 Rules 32 and 33 of the Code of Civil Procedure to enforce a decree of conjugal rights by using various types of sanctions against the disobeying party. Such court-mandated restitution which exposes the party to financial and other sanctions in case of default of the decree amounts to a “coercive act” that violates the party’s individual autonomy, right to life and dignity. This, along with the lack of gender equality in marital relationships, has graver consequences for the rights of the wife.
CONSTITUTIONAL VALIDITY: THE COURTS APPROACH THROUGH THE YEARS
The constitutional validity of the provisions for restitution of conjugal rights has been a contentious issue that has reached the courts on several occasions. The main ground for the challenge has been that it is a violation of the fundamental right to privacy, individual autonomy and dignity of individuals protected under Article 21 of the Constitution.
The violation of the right to privacy by the application of Section 9 of HMA was upheld by the Andhra Pradesh High Court in the case of T. Sareetha v. T. Venkata Subbaiah. The Court observed that forcing the wife to reside with the husband would result in the wife losing the autonomy of control over intimacies of personal identity. This decision was later rescinded by the Delhi High Court in Harmander Kaur v Harvinder Singh Choudhry where it was observed that the remedy of restitution aims at cohabitation and consortium and not merely at sexual intercourse. The Supreme Court later upheld this narrow interpretation of the right to privacy in Saroj Rani vs Sudarshan Kumar Chadha.
All these cases were pertaining to the debate over the application of the fundamental right to privacy in matrimonial relationships. However, taking into consideration the recent landmark cases recognizing the right to privacy as a basic right under Article 21 and including within it an individual’s right to retain the autonomy of the body and mind, there is a necessity to re-examine the interpretation of this right by the Supreme Court in the Saroj Rani case. In the Joseph Shine case, the Court held that sexual privacy is a natural right protected under Article 21 and “to shackle the sexual freedom of a woman” is a denial of this right.
Despite the Court recognizing that sexual relations are not the “ultimate goal of a marriage” and that restitution of conjugal rights aims only at compelling the parties to a marriage to live in the same household and does not compel them to have sexual intercourse. It must be taken into consideration that marital rape is not an offence in India and compelling the wife to live with her husband can affect her sexual autonomy as she can be made subject the forcible sexual intercourse by her husband without the imposition of any legal sanctions. Therefore, even if sexual cohabitation is not an essential element of the provisions of restitution of conjugal rights, the state compelling the wife to reside with her husband deprives her of the right to her own body by exposing her to the risk of marital rape.
The grant of a decree of restitution compels the spouses to reside together without ensuring an effective reconciliation process. This attempt at “preserving” the marital bond has a coercive effect on the parties and violates their fundamental rights.
The application of the provision along with the unequal structure of the marriage disproportionately affects the wife and prejudices her rights. Recently, the Supreme Court while discussing order of restitution of conjugal right stated that a woman is not a husband’s chattel and cannot be forced to live with him. In light of the abolishment of restitution of conjugal rights in common law countries, along with the progressive gender-neutral approach taken by the judiciary, it is essential that the Supreme Court repeals this law for being violative of the basic rights in the soon to be heard pending case on this issue (Ojaswa Pathak v Union of India).
Author(s) Name: Reet Balmiki (NALSAR University of Law, Hyderabad)
 Apurva Vishwanath, Explained: Conjugal rights before the Supreme Court, (INDIAN EXPRESS, last updated 26 July 2021), <https://indianexpress.com/article/explained/explained-conjugal-rights-before-supreme-court7411007/> accessed 7 December 2021.
 MULLA, PRINCIPLES OF HINDU LAW (1974) 597.
 Anik Bhaduri, The Restitution of Conjugal rights in Indian law violates the right to privacy; (OXFORD HUMAN RIGHTS HUB, 30 July 2018), <https://ohrh.law.ox.ac.uk/the-restitution-of-conjugal-rights-in-indianlaw-violates-the-right-to-privacy/> accessed 7 December 2021.
 Justice K.S. Puttuswamy and Anr. V. Union of India and Ors., (2017) 10 SCC 1 (SC)
 Joseph Shine v. Union of India, (2018) SCC 1676 (SC).
 Supra note, 4.