Conjugal Rights

News: The Supreme Court is expected to begin hearing a fresh challenge to the provision allowing restitution of conjugal rights under Hindu personal laws.

Conjugal Rights:

  • Conjugal rights are rights created by marriage, i.e. 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.
  • Section 9 of the Hindu Marriage Act recognises one aspect of conjugal rights — the right to consortium and protects it by allowing a spouse to move court to enforce the right.
  • The concept of restitution of conjugal rights is codified in Hindu personal law now, but has colonial origins.
  • Originating from Jewish law, the provision for restitution of conjugal rights reached India and other common law countries through British Rule. The British law treated wives as their husband’s personal possession hence they were not allowed to leave their husbands. Similar provisions exist in Muslim personal law as well as the Divorce Act, 1869, which governs Christian family law.
  • Incidentally, in 1970, the U.K repealed the law on restitution of conjugal rights.
  • When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court.
  • 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.
  • Also, if a spouse refuses cohabitation, the other spouse can move the family court seeking a decree for cohabitation. If the order of the court is not complied with, the court can attach property. However, the decision can be appealed before a High Court and the Supreme Court.

Challenges:

  • Main ground is that it is violative of the fundamental right to privacy. It amounted to a “coercive act” on the part of the state, which violates one’s sexual and decisional autonomy, and right to privacy and dignity.
  • 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.
  • Also in question is whether the state can have such a compelling interest in protecting the institution of marriage that it allows a legislation to enforce cohabitation of spouses.

Previous Judgements:

  • In 1984, the SC had upheld Section 9 of the Hindu Marriage Act in the case of Saroj Rani v Sudarshan Kumar Chadha, holding that the provision serves a social purpose as an aid to the prevention of break-up of marriage.
  • In 1983, a single-judge bench of the Andhra Pradesh High Court had for the first time struck down the provision in the case of T Sareetha v T Venkatasubbaiah and declared it null and void.
  • It cited the right to privacy among other reasons. The court also held that in “a matter so intimately concerned the wife or the husband the parties are better left alone without state interference”.
  • The court had, most importantly, also recognised that compelling “sexual cohabitation” would be of “grave consequences for women”.
  • However, in the same year, a single-judge Bench of the Delhi High Court took a diametrically opposite view of the law. In the case of Harvinder Kaur v Harmander Singh Chaudhry, the Delhi High Court upheld the provision.