Matrimony in India, as a social institution, is probably of the highest order. The implication of this is that the parties in matrimony possess conjoint enjoyment of rights and obligations towards the other.
Each spouse is entitled to the association and companionship of the other and the Indian legislature, in order to correct any ‘unreasonable’ departure from such matrimony, has provided a statutory relief under Section 9 of the Hindu Marriage Act, 1955. It provides that when the husband or the wife ‘withdraws from the society of the other’, without a reasonable excuse, the aggrieved spouse may approach the court for a decree of restitution of conjugal rights. The court may, then, grant such decree to the aggrieved spouse if it is satisfied with the validity of the claim, also provided that there exists no legal infirmity.
The essentials constituting the provision of restitution of conjugal rights are as follows:
1. Withdrawal from the society of the petitioner, by the respondent.
2. Such withdrawal is without any reasonable cause or excuse.
3. The court is satisfied regarding the truth of the claim made in the petition.
4. There exists no legal ground for refusal of the relief.
The remedy of restitution of conjugal rights was not recognized by India’s old texts. No reference of such like is present in the Dharmashastra or the Vedas, and neither in the texts of ancient Muslim law. This ‘remedy’ came in with the British Raj, and has stayed till present day, as yet another instance of colonial hangover.
Restitution of conjugal rights has its roots in principles of feudal England of Victorian era, where marriage was considered as a property deal and the wife was merely a part of man’s possession like any other chattel[i]. Ecclesiastical courts would pronounce such actions, since they formerly had jurisdiction over matters of matrimony[ii]. The advent of the provision was through the case of Monshee Buzloor vs Shumsoonissa Begum .Though, the remedy has been done away with in England, it still stands statutorily recognized in India.
CONUNDRUM AROUND THE PROVISION
When the provision under the Special Marriage Bill and Hindi Marriage and Divorce Bill was being debated in parliament, many members voiced their opinion against it. J.B. Kriplani said: “This provision is physically undesirable, morally unwanted and aesthetically disgusting...”. Mr. Khardekar had opposed the remedy, saying, “to say the least this particular cause is uncouth, barbarous and vulgar. That the government should be abettors in a form of legalized rape is something very shocking…[i]”
In the case of T. Sareetha vs T. Venkata Subbaiah, the constitutional validity of this provision was challenged before the Andhra Pradesh High Court. The appellant argued that Section 9 was in violation of Articles 14, 19 and 21 of the Constitution of India, inasmuch as it offended ‘the guarantee to life, personal liberty and human dignity and decency’. In his judgement, Justice Choudary held that, the proven was indeed a violation of Article 21, as the grant of such a decree offended the right to privacy of the woman against whom such a decree is sought.
The conclusion was drawn from already established principles. The Supreme Court in the case of Govind vs State of Madhya Pradesh held that that individual privacy and dignity were protected by Article 21, with the rider that ‘privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior’.
Thus, in Sareetha’s case, in the judge’s understanding, what was undeniable about any conception of privacy was its reference to the ‘human body’ and ‘control over personal identity’. Even in an attempt to define it minimally, the right to privacy was ‘bound to include body’s inviolability and integrity and intimacy of personal identity’. In lieu of the same, Section 9, which enabled the court to do through the decree of restitution of conjugal rights was, essentially, ‘to coerce through the judicial process the unwilling party to have sex against that person’s consent and freewill, with the decree holder’. Justice Choudary further stated that decree enforcing restitution of conjugal rights constitutes the starkest form of Government invasion of personal identity and individual’s zone of intimate decision since an individual loses their autonomy of control over intimacies of personal identity.
However, when the provision was examined again, in the significant case of Harvinder Kaur vs Harmander Singh Choudhry ,Justice Rohatgi stated that “Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14 have any place.”
Similarly, the Supreme Court in the case of Saroj Rani vs Sudarshan Kumar Chadha ,stated that restitution of conjugal rights ‘served a social purpose as an aid to the prevention of break-up of marriage’ and that there were sufficient safeguards in Section 9 to prevent it from being a tyranny. Moreover, it was observed that the remedy of restitution aimed at cohabitation and consortium and not merely at sexual intercourse i.e. in a much wider sense than aimed at through the Andhra Pradesh High Court judgment. Consequently, the constitutional validity of Section 9 was upheld.
As recent as March 2019, this issue re-surfaced via a PIL, which the Supreme Court agreed to hear. The petitioners are students of Gujarat National Law University, Gandhinagar and the bench comprising of former CJI Ranjan Gogoi and Justice Sanjiv Khanna referred the case to a three-judge bench for hearing. Asserting that the right to cohabit is an intimate personal choice, the contention is that the provisions requiring a person to cohabit with another against his or her free will, is gravely violative an individual’s right to privacy.
The dubiety of the position of such a relief is both — a legal as well as psychological matter of concern in the present day. This is an unrealistic remedy which is gradually altering to merely a quicker way to seek divorce in court. Moreover, the paucity of means to enforce this provision dilutes the very ‘social’ intention. This stems from the fact that compelling enforcement of the decree is limited to the action of attachment of erring party’s property by court. If compliance still fails, the court may penalize him or her for contempt of court, beyond which the court lacks any means. Even in the situations where a party abides by the decree for sake of property or fine, the result only a temporary and illusionary ‘restitution’.
The premise of a social institution like marriage is much more complicated than what meets the eye and provision in law cannot successfully facilitate restitution. Psychological and circumstantial events may not always be clear to courts, and therefore, the power of such decree shouldn’t vest in them in the first place. Simply put, restitution of a conjugal relation, in its true sense, is something law cannot accommodate. The provision must be revisited, and upon examination, be held invalid.
[i] Agarwala, Raj Kumari. RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU LAW : A PLEA FOR THE ABOLITION OF THE REMEDY. Journal of the Indian Law Institute 12, no. 2 (1970): 257-68. www.jstor.org/stable/43950070.
[ii] Dr. Paras Diwan, Law of Marriage and Divorce, 5th Edition, Universal Law Publishing Co, 2008
[iii] Kaul and Dhingra, Hindu Women and Restitution of Conjugal rights: A plea for the Abolition of the remedy, Women: Problems and Perspectives, Deep and Deep Publications ,1996