Roopa Dayal (Partner)
The legal system of India allows Courts to interfere in various matrimonial aspects of the lives of its citizen. Most of the laws regulating marriages or private partnerships are civil in nature (laws relating to divorce, division of property upon the death of a spouse etc.). However, a few of them have been made to fall under penal offences (such as section 498A of the Indian Penal Code, 1860). As per Hindu Law, marriage is not a contract and therefore, the parties cannot mutually decide and agree upon the ‘terms of contract’. It’s a sacramental bond, and the parties are legally entitled to live in each other’s company during the subsistence of marriage. After the solemnisation of the marriage, if either of the spouses, without reasonable excuse, withdraws himself or herself from the society of the other, then the aggrieved party has a right under the law to file a petition in the matrimonial court for restitution of conjugal rights. A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party.
The Supreme Court is currently dealing with public interest litigation filed by Ojaswa Pathak, who has challenged Section 9 of the Hindu Marriage Act, 1955, section 22 of the Special Marriage Act, 1954 and Rules 32 and 33 of Order XXI of the Code of Civil Procedure, 1908. The petitioner has contended that the 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, right to privacy and dignity, which fall under the purview of right to life and personal liberty as provided under Article 21.
The section has been challenged on the grounds of being violative of personal autonomy, dignity and privacy of an individual and thereby violating Article 21 of the Indian Constitution. Recently, a nine-judge bench of the Supreme Court in the matter of K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, had ruled ‘privacy’ to be a fundamental right of an individual and had observed that privacy is an essential aspect of dignity and autonomy cannot be separated from the basic freedoms given by the Constitution. Prior to this, the Supreme Court, in NALSA v. Union of India (2014) 5 SCC 438, upheld the right to individual autonomy, dignity and personal identity as part and parcel of the right to life. It is a settled position of the Indian Legal system that ‘Right to life’ as enshrined under Article 21, is not limited to the right to a mere animal existence but includes a right to a dignified life.
Another challenge posed to the ‘Restitution of Conjugal Rights’ is that of being violative of Article 14 of the Indian Constitution. This challenge is based on the notion that compelling a woman to live with a man against compelling a man to live with a woman has dispirit consequences against the woman, in that the woman may be compelled to sex against her will and consent and may result in unwanted pregnancies. Similar consequences are unforeseeable and biologically impossible for a man. It has to be kept in mind that there is no recognised ‘marital rape’ in India. However, the Supreme Court had held in the matter of Independent Thought Vs. Union of India that any act of sexual intercourse with a man with his wife below the age of 18 years would fall under the ambit of offences related to rape under the Indian Penal Code, 1860. However, no section of law should result in dispirit consequences because the consequences are unequal; equality is violated under Article 14.
This section have been considered outdated and non-conforming to the current present norms of society. British Law Commission chaired by Mr. Justice Scarman in its 23rd Report in 1969 had recommended the abolition of the provision for restitution of conjugal rights in Matrimonial Causes Act, 1965. The Commission had given the following reasons against the restitution of conjugal rights:-
- In so far as restitution proceedings are used to demonstrate a spouse’s endeavour to save the marriage by showing his or her willingness to resume married life together, this can be demonstrated equally clearly by other more appropriate approaches.
- In so far as restitution proceedings are brought to establish desertion, this can be effected equally well, and more suitably, by obtaining an order on the ground of desertion in the magistrates’ court, a remedy available to either spouse.
- If the real purpose of restitution proceedings is to obtain financial support, the proper remedy for this should be section 22 of the Matrimonial Causes Act, 1965.
- The fact that, in some cases, no steps are taken in restitution proceedings after the petition is filed of itself establishes nothing; the reason for no further steps being taken may be due to the petitioner’s realizing that to continue the proceedings would not bring the respondent back. Nor does the fact that, in some cases, reconciliation takes place after a restitution petition is filed establish that such proceedings tend to bring about a reconciliation, for reconciliation can and does occur in all types of proceedings.
- A court order directing adults to live together is hardly an appropriate method of attempting to effect a reconciliation.
- The “order” has, in fact, no teeth and only brings the law into disrepute; it is suspected that few if any, decrees are obeyed, and the futility of the decree is well illustrated by Nandu v. Nunda  P. 351.In this case, a wife, having obtained a decree for restitution, went to the husband’s flat and the Court was prepared to grant an injunction to restrain her from molesting him and entering the premises of the huband’s house.
- The mere fact that the remedy of restitution of conjugal rights is so rarely used of itself
- reflects that the remedy is not an effective one.
It is interesting to note that the section has been looked like the one infringing the dignity of an individual from pre-historic times. In Dadaji Bhikaji vs Rukhmabai, the High Court of Bombay was called upon to decide whether Dadaji, who had been married to Rukhmabai when he was nineteen, and she was eleven, could enforce a decree for the restitution of conjugal rights even after eleven years of marriage, wherein they had never cohabited. Sitting as the Court of first instance, Justice Pinhey held that he could not force the woman to go and live with her husband correctly, noting that the remedy of restitution of conjugal rights had “no foundation in Hindu law” and had been “transplanted from England into India”.
Again in the matter of T. Sareetha, Andhra Pradesh High Court came, whose judgments had sparked a divisive debate about the public/private divide and the rights that women had in and outside their marriage, their family, and their community.
Using the remedy of Restitution of Conjugal rights to either save the marriage or end the marriage is an unnecessarily lengthy and wasteful process for both- the courts as well as the parties, especially when there are alternative remedies available to establish both ends of marriage under the current India Legal System. The Central Government has, though, challenged the petitioners’ position, but in light of newly developed jurisprudence and meaning of ‘right to life’, the challenge would be a difficult one to establish.