In Indian society, marriages are an essential part of life and are considered divine and sacrosanct. The concepts of progressive marriage are still trying to find their place in a world where the relationship between society and law is a hare and tortoise race. While the view of women as chattel is gradually changing, remedies such as restitution of conjugal rights continue to exist as the proprietary rights of husbands over their wives. Restitution of conjugal rights occurs when either one of the spouses has withdrawn from the society of the other person ‘without any reasonable cause.’ This concept originates in Jewish law and reached other common law countries through British rule. Since wives were considered chattel in British law, they were not allowed to leave their husbands, thereby infringing upon their fundamental rights. In various countries such as the UK, Ireland, Australia and South Africa, the legal action for restitution to conjugal rights has been abolished.

Section 9 of the Hindu Marriage Act: A Pointless Sword

The restitution of conjugal rights is a type of relief provided to spouses in distress in the institution of marriage by law. Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) provides for the restitution of conjugal rights. This section of the Act says: “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for the restitution of conjugal rights and the court, on being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”.

The burden of demonstrating a reasonable excuse lies with the person who withdrew from the society of the spouse. Any type of abuse is hard to prove because the abuser frequently leaves no marks, scars occasionally heal, and bruises diminish with time. However, it becomes nearly impossible to show when the same brutality takes an emotional or mental turn. How can a wife or husband demonstrate that their partner is starving them, abusing them mentally, or humiliating them? These are difficult to show, and frequently their only effective option is to end their marriage.

Striving for Constitutionality

The constitutionality of the provision for the restitution of conjugal rights has frequently been contested. It is crucial to examine how the concept of privacy has changed legally in this setting and how it has affected important rulings like T. Sareetha and Saroj Rani regarding the restitution of conjugal rights. In Sareetha v. Venkata Subbaiah, the Andhra Pradesh High Court ruled that Section 9 of the Constitution, which provides for the relief of restitution of conjugal rights (RCR), is unconstitutional because it violates both Articles 14 and 21 of the Constitution (the right to privacy and the right to liberty)(Right to equality).

The husband filed a petition for RCR, and his famous movie star wife filed an opposition to the suit (Sareetha). According to the argument made on behalf of the wife, a woman has a “right of free choice as to whether, where, and how her body is to be used for procreation of children, as well as the choice of when and by whom the various parts of her body are to be sensed” under the terms of the right to privacy. She has the right to privacy, which includes freedom of choice. She argued that Article 21 guarantees this as a part of her “liberty.” The State is infringing on this fundamental right protected by Article 21 by recognizing the remedy of restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Additionally, by making this remedy open to both married men and married women, the remedy violates Article 14 by treating persons who are essentially unequal as equals.

Furthermore, the Supreme Court of India in Gobind Singh v. State of MP defined privacy as something that “preserves the intimate intimacies of the home, the family, marriage, motherhood, procreation, and child-rearing.” According to this definition of the “right to privacy,” the house is a private space into which the law shouldn’t intrude. The Andhra Pradesh High Court gave a more individualistic and progressive interpretation of privacy in T. Sareetha. It was held that a person’s right to privacy belongs to them and is independent of their marital status. Therefore, there is a grave infringement of the woman’s right to privacy and bodily autonomy when this decision about whether to engage in marital intercourse is transferred from the wife to the state.

In contrast, the courts in Harvinder Kaur and Saroj Rani decided to return to the constrained interpretation of the right to privacy advocated by the Supreme Court in Gobind Singh.

Need for Reform

While this provision is gender-neutral, we have to take note that women in India still face discrimination in society, and this provision takes advantage of that. For instance, women are frequently emotionally and mentally mistreated and tortured for dowry, and dowry killings are still common in society. A decree of the restitution of conjugal rights is a noose around the necks of these exhausted and broken spouses as they depart their husband’s home. How can our courts, which promise to protect the three pillars that are justice, equality, and conscience, decide a ruling for a woman who is already on the verge of breakdown to return to the place of her abuse?

This position needs to be re-evaluated in light of the recent progressive rulings rendered by the Supreme Court. In Navtej Singh Johar v. Union of India, the Supreme Court held that Article 21 of the Indian Constitution must be recognized in order to protect each person’s absolute autonomy over intimate decisions pertaining to their personal lives. Similarly, the supreme court ruled in K.S. Puttaswamy v. Union of India that an individual’s “right to privacy” should be construed through an individualized lens, encompassing the right to total autonomy over their body. The court stated that in order to exercise any other fundamental right listed in Part III of the Constitution, the right to privacy must first be satisfied.

Additionally, the court in Navtej Singh Johar underlined that “choice and dignity” are connected and that it is very challenging to imagine dignity in its sanctified completeness if the right to freedom of choice is restricted. We need to shift to more progressive marriage views among the judiciary and society in India. RCR as a provision must be declared void in the shadow of Puttaswamy and Joseph Shine’s judgements which talked about right to privacy as a fundamental right under Article 21.

Conclusion

It’s a hard truth to digest, but the Indian legal system has a history of a very paternalistic outlook on women’s private lives. The laws have forced women to passively accept the complex patriarchal system they encounter in their daily lives. However, we need to understand that marriage is the foundation on which two consenting adults establish a connection and freely choose to share their companionship. It is based on the mutual consent of two people to share their freedom and liberty. Restitution of conjugal rights as a matrimonial relief deprives a spouse of their autonomy over their body and their choice. Given our current legal situation in light of the Joseph Shine decision and societal norms, such a statute cannot be upheld. It is time for India to do away with this harsh and patriarchal “remedy” once and for all and re-examine this barbarous provision. 

Khushi Gupta and Vishakha Shakya are second year law students at Dr. Ram Manohar Lohiya National Law University, Lucknow, India.

Suggested citation: Khushi Gupta and Vishakha Shakya, Restitution of Conjugal Rights: A Peril to Fundamental Rights in India, JURIST – Student Commentary, January 24, 2023, https://www.jurist.org/commentary/2022/01/Khushi-Gupta-and-Vishakha-Shakya-conjugal-rights-India-women’s-rights/.

This article was prepared for publication by Rebekah Yeager-Malkin, Co-Managing Commentary Editor. Please direct any questions or comments to she/her/hers at commentary@jurist.org