Author: Neha Singh
INTRODUCTION
Personal laws in India have given importance to the sanctity of marriage for centuries. The provision for conjugal rights are vehemently emphasized in every matrimonial law. In the most fundamental way, marriage rights refer to the freedom to cohabit and have a sexual relationship with one’s spouse. One of the foundational tenets of marriage is that the woman and husband live together in harmony and respect for one another’s rights. “Restitution of Conjugal Rights” is a legal clause that enables the offended party to restore cohabitation against a spouse who withdrew without cause. It’s frequently thought of as a strategy to keep a marriage intact. Marriage imposes various marital obligations and grants each spouse legal rights under all matrimonial laws. The Act’s contested clause has a lengthy history due to its constitutional legitimacy.
There are contrasting points of view in the argument over the legitimacy of this regulation as constitutional. Conjugal rights are regarded from a traditional perspective as the social glue that binds marriage as an institution. One is the conventional perspective, which maintains that marriage is a social institution held together by conjugal rights. Contrarily, the feminist viewpoint perceives marital rights as being intrusive, unlawful, and in violation of fundamental human rights. A kind of personal liberty infringement and consequent violation of their right to life is the court’s intervention in the enforcement of the spouse’s right to have their married status restored.
A COLONIAL RELIC
Some family laws, including the remedy of Restitution of Conjugal Rights, were also passed down from colonial times. Although this approach is still extensively practiced in India, it has been outlawed in the United Kingdom for a very long time. Additionally, it has been eliminated in numerous Canadian provinces as well as Ireland, Australia, and South Africa.
The law of restitution of conjugal rights is one that India received from colonialism. It was a privilege that was once available in the British ecclesiastical courts, which dealt with problems of faith and spirituality. Later, the Court for Divorce and Matrimonial Causes took jurisdiction over this case. The remedy has its roots in Victorian ideas that women should be treated as the property of their husbands, giving him the same rights over them as he did over any of his other chattels. The Matrimonial Proceedings and Property Act of 1970 eliminated the practise after the Law Commission recommended its elimination in a report in 1969.
LEGAL FRAMEWORK
According to Paras Diwan, neither the Dharmashastra nor Muslim law established any provisions for the remedy of restitution of conjugal rights. It was brought by the British Raj. The practise of restoring conjugal rights has its origins in feudal England, where marriage was viewed as a property transaction and the wife as a piece of property similar to other chattels. In the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum, where such conduct were construed as grounds for specific performance, the doctrine of restitution of conjugal rights was brought to India.
In Indian society today, the remedy is available to Hindus under Section 9 of the Hindu Marriage Act, 1955, Muslims under general law, Christians under Sections 32 and 33 of the Indian Divorce Act, 1869, Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936, and individuals married in accordance with the Special Marriage Act, 1954 (SMA), Section 22 of which provides for those who were married in accordance with the SMA’s provisions.
Hindu marriages typically have a gift as their foundation rather than a contract. A hindu marriage is eternal and sacramental in character because, according to hindu law, this sacred knot is meant to be tied between two souls and is expected to last up to seven lifetimes. In general, a Hindu marriage is crucial to a Hindu’s ability to fulfil their religious obligations, such as Dharma, Artha, Kama, and Moksha – pious acts that will result in a prosperous way of life. The Hindu Marriage Act of 1955 primarily relies on Sanskrit law, but it has been amended to adapt to the needs of contemporary society, including the idea of separation, Restitution and divorce in Hindu marriage.
Faiz Badruddin Tyabji contends that Muslim married couples are also eligible for the remedy of restitution of conjugal rights, and he states that –
“When either of the spouses withdraw from the society of another without any reasonable excuse, the aggrieved party may apply by filing a petition for a decree of restitution of conjugal rights and if the court has no valid reason to reject the petition then the court may order the decree in favor of petitioner”.
According to the ruling in Moonshe Bazloor v. Mohammed Khan, if a wife ceased to cohabit with her husband without a valid reason, the husband might sue the wife for reparation. If the husband seeks recovery of conjugal rights, the Muslim wife has a number of defenses at her disposal.
THE QUESTION OF CONSTITUTIONAL VALIDITY
The constitutional validity of the restitution of conjugal rights has previously been contested in court, first in T Sareetha v. T Venkata Subbaiah in the Andhra Pradesh High Court, then in Harvinder Kaur v. Harmender Singh in the Delhi High Court, and finally in Saroj Rani v. Sudershan Kumar in the Supreme Court. The Andhra Pradesh High Court ruled that Section 9 of the Hindu Marriage Act was unconstitutional, but the Delhi High Court and the Supreme Court reached a different conclusion. Because of the hierarchy of the Indian judicial system, the Supreme Court of India has the final say, and the remedy retains its legality to the present day.
Violative of Right to Equality
The Ojaswa Pathak v. Union of India, case represents a significant development in the area of restitution of conjugal rights.14 The petitioners in this case brought up an important concern regarding the impact of this clause on the constitutionally guaranteed rights to equality, sexual and reproductive health, and autonomy. The petitioners sought a socio-legal interpretation of the rules in order to determine their validity. They explicitly disputed Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908, Section 22 of the Special Marriage Act, 1954, and Section 9 of the Hindu Marriage Act.
Although the legal provision permits both men and women equally to seek restitution of conjugal rights, it has been stated. Despite these regulations being gender-neutral, women are nevertheless disproportionately affected by them. This is a result of the Indian social structure, which has developed to benefit men. As a result, if the woman is compelled against her choice to live in her husband’s home with his family, it not only places her in an unfair situation but could also be destructive to her well-being.
As the Apex Court correctly stated in the case of Shakila Banu v. Gulam Mustafa, this idea originated in the past, when women were viewed as simply chattel or as property, and slavery or quasi-slavery was not regarded as being against the law. It is therefore a medieval English law that has no place in a constitutional system that guarantees men and women’s equality of status and personal liberties and permits the state to make specific provisions for preserving and protecting those rights. These restitution of conjugal rights clauses therefore violate Articles 14 and 15(1) of the Constitution.
Violative of Right to privacy
The legitimacy of the clause has been questioned on the grounds that it infringes the fundamental rights and hence Unconstitutional. In the case of T. Sareetha v. T. Venkatasubbaiah (supra), the Andhra Pradesh High Court issued a relatively progressive ruling in which it deemed Section 9 to be a grave violation of spouses’ right to privacy. This ruling was a start towards rectifying this feudal law that violated people’s fundamental rights under the pretense of protecting marital relationships. In the matter of Harvinder Kaur v. Harmander Singh Chaudhary (Supra), the Delhi High Court took a different tack. The Supreme Court’s decision in the case of Gobind v. State of Madhya Pradesh was upheld by the Court in this instance. The Court maintained Section 9 as a clause protecting the sanctity of marriage.
It made a distinction between sexual connections and the idea of consortium or cohabitation as it applied to marriages. Furthermore, Section 9 only requires cohabitation between spouses; it does not mandate sexual relationships within a marriage. By upholding that courts interference with regard to fundamental rights in the private sphere of individuals may disrupt the institution of marriage, this judgment limited the scope of the right to privacy.
The judge erred in asserting that Section 9 does not undermine an individual’s right to privacy, despite correctly pointing out the underlying meaning behind this clause. Enforcing cohabitation on a spouse puts them and their fundamental rights in severe danger in a nation where marital rape is still not recognised as a crime.
CONCLUSION
As a result, despite being gender-neutral, the remedy of Restitution of Conjugal Rights has a negative impact on women. It is a colonial inheritance founded on Victorian patriarchal norms, hence it does not pass the conventional classification test. This article claims that the remedy should be banned in India because of its excessive utilization, as it is frequently used as a counterblast when the wife files a domestic abuse, dowry, or maintenance case. The remedy has already been removed in the United Kingdom due to its rarity in usage.