This article is written by Kritika Garg from National Law University Odisha. This is an exhaustive article which focuses on the constitutional validity of restitution of conjugal rights and does it violate the right to privacy.
Marriage is always considered to be a very pious and strong relationship that exists not only between two individuals but between two families. However, sometimes the marriage does not seem to be working and a situation might arise where a spouse might not feel comfortable living with the other spouse.
However, the restitution of conjugal rights provides a right to the spouse to call the other spouse back to live with him/her again. While this right seems to be valid from the point of view that it is a remedy or a chance to protect the relationship and to save the family, the same does not seem to be so from the point that it forces one to stay with a person with whom he/she does not want to stay. Thus, this right has always been a very controversial topic with questions regarding its constitutional validity that whether this right violates the right to privacy as guaranteed by the Constitution of India? Does this right infringe the right to privacy of a spouse by forcing him/her to live with the other spouse and thus ripping the right over the self-body?
This article tries to answer questions regarding the constitutional validity of the restitution of conjugal rights with respect to the right to privacy.
Restitution of conjugal rights
Section 9 of the Hindu Marriage Act (HMA), 1955 and Section 22 of the Special Marriage Act (SMA), 1954 provides for restitution of conjugal rights which states that if a husband or a wife has withdrawn from the society of the other without any reasonable excuse, then, the aggrieved party can file a petition before the District Court for restitution of conjugal rights i.e. to bring the spouse back to live with the other spouse. The court may grant a decree of conjugal rights if it is satisfied that the petition is based on truth and there is no legal ground for dismissing the petition.
However, it is on the person who has withdrawn from the society of the other to prove that there is a reasonable excuse for his/her withdrawal and thus, the decree should not be granted.
As per Section 9, the important elements for implementing the restitution of conjugal rights are:
- Withdrawal of a spouse from the other spouse’s society without any reasonable excuse.
- The Court is satisfied with the petitioner’s statement.
- There is no legal ground for dismissing the petition.
There are a lot of ambiguities in this Section with terms not clearly defined.
Terms such as ‘withdrawn’ and ‘reasonable excuse’ have not been defined with respect to this Section. Withdrawal might be forceful instead of a wilful one still the burden of proof lies on the person who withdrew from the society which might not have happened willingly but forcefully. Similarly, a reasonable excuse is also ambiguous in the sense that what is reasonable for one person might not be reasonable for others.
Questions like, “what does withdrawing from society mean?”, “Does a wife’s refusal to leave a job amount to withdrawal from society”, have been raised before the court multiple times.
In the case of Tirath Kaur v. Kripal Singh, the wife left her husband’s house to pursue her job. The husband often visited her and she used to give him some portion of her income. When his demands for money increased and the wife could not fulfil his demands, the husband asked her to leave the job. When the wife refused to leave her job, the husband filed a petition to bring her back under Section 9 of the HMA, 1955 before the Punjab & Haryana High Court. Justice Grover, after relying on the Mulla’s opinion that it is the foremost duty of the wife to submit herself obediently to her husband’s authority and to remain under the same roof with his protection, said that no rule or principle has been shown to him which will uphold that the wife could be allowed to withdraw ‘virtually’ from the society of the husband in this manner. Thus, the refusal of the wife to leave her job amounts to withdrawal from society. A series of judgements were then based on this line.
However, in the case of Shanti Devi v. Ramesh Chandra Roukar and Ors., the Allahabad High Court gave a different judgement where it was held that mere denial of the wife to resign from her job does not amount to withdrawal from the society. Thus, it cannot be a sufficient ground for granting a decree under the restitution of conjugal rights.
Further, in the case of Smt. Vibha Shrivastava v. Dinesh Kumar Shrivastava, the Madhya Pradesh High Court held that a wife’s refusal to leave her job does not amount to withdrawal from her husband’s society, and, thus it is not a sufficient ground for the husband to seek relief for the restitution of conjugal rights.
Section 9 has always been in controversy regarding its constitutional validity. However, the same was taken into consideration in true sense in 1983 by the Andhra Pradesh High Court. In the case of T. Sareetha v. T. Venkata Subbaiah, the High Court declared Section 9 of the HMA, 1955 as unconstitutional for being violative of the right to privacy and human dignity guaranteed under Article 21 of the Constitution of India. Justice P.A. Choudhary observed that Section 9 is the grossest form of violation of the right to privacy. Forcing a spouse to have sexual relations with her spouse deprives her of the right to control her own body. The state cannot coerce a spouse to prolong the voluntary union of her with her spouse in their relationship. The state by coercion can neither soften the ruffled feelings between a couple nor can it clear the misunderstanding between them. The judge even observed that Section 9 is not promoting any public purpose, rather it is violative of right to equality under Article 14 of the Indian Constitution as well.
However, the judgement was rescinded by the Delhi High Court in the case of Harvinder Kaur v. Harmander Singh and was overruled by the Supreme Court in the case of Saroj Rani v. Sudarshan where consideration was given to family, togetherness and preserving matrimonial relation between husband and wife.
The Supreme Court relied on its previous judgement given in the case of Gobind v. State of Madhya Pradesh, wherein the court held that “the right to privacy protects the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing” which means that there can be no interference by law within the private space of a home.
Further, in the case of Saroj Rani v. Sudarshan Kumar Chadha, Justice Mukherjee observed that the purpose of Section 9 is to bring an estranged couple back together so that they can live together in a matrimonial house in amity. On the point of forcing a spouse to have sexual intercourse with her spouse, Justice Mukherjee added that the aim of the impugned Section is ‘consortium’ and not sexual intercourse. The purpose behind granting a decree under this Section is to cohabitate the couple in the same household with love, care and affection and it in no sense compels the parties to have sexual intercourse.
However, since marital rape is not considered as an offence in India, forcing a wife to stay with her husband is equivalent to taking away her choice of having sexual intercourse or not because the husband can anytime violate her right over her body without any legal actions.
Violative of Article 19
The decree of restitution of conjugal rights violate:
- Freedom of association 19(1)(c)
- Freedom to reside or settle in any part of India (19)(1)(e)
- Freedom to practice any profession 19(1)(g)
Freedom of association under Article 19(1)(c)
Grant of a decree of restitution of conjugal rights compels a spouse to live with his/her spouse against his/her will. This violates the freedom of association guaranteed under Article 19 of the Constitution of India. In the case of Huhhram v. Misri Bai, the wife left her husband because her father-in-law had an evil eye on her and the husband treated her badly. Even after that, the Madhya Pradesh High Court granted a decree of restitution to the husband. It can be concluded that If she was molested by her father-in-law because of her association with her husband due to the decree, then the decree of the court would be responsible for the mishap.
Further, in the case of Atma Ram v. Narbada Devi, the Rajasthan High Court granted a decree of restitution in favour of the wife even when the husband clearly stated that he does not want to live with her. This clearly violates the freedom of association of the husband.
Freedom to reside or settle in any part of India under Article (19)(1)(e) and Freedom to practice any profession under Article (19)(1)(g)
The decree of restitution of conjugal rights violates the freedom to reside in any part of India because a spouse is forced to come and live with another spouse in his/her matrimonial home.
Additionally, it also violates the freedom of practising any profession in many cases.
In the case of Tirath Kaur v. Kripal Singh, the wife was staying away from her husband in order to practice her job. However, due to certain conflicts, the husband asked his wife to leave her job and on denial, he filed a petition for restitution of conjugal rights. The court granted him the decree thus, forcing the wife to live with her spouse. This is a clear violation of freedom to settle in any part of India and to practice any profession.
As per a report presented by the High-Level Committee on the status of women in 2015, the restitution of conjugal rights has no relevance in independent India. The Law Commission of India, on the recommendation of the report, suggested the deletion of Section 9 of the HMA,1955, and Section 22 of the SMA, 1954 in its ‘Consultation Paper on Reform of Family Law’ in 2018.
Further, in the case of K.S. Puttaswamy v. Union of India, the Supreme Court upheld the fundamental right to privacy which grants individuals complete autonomy over their body.
Additionally, in the case of Joseph Shine v. Union of India, the apex court observed that the right to privacy depends on the exercise of autonomy by individuals. If an individual is disabled from exercising his/her the right to privacy then the court must take steps to ensure that the person’s right is realised in its fullest sense. The Court further observed that an individual’s right to privacy cannot be infringed by regarding familial structures as private space.
Post these verdicts, a petition was filed in the Supreme Court challenging the constitutional validity of Section 9 of the HMA and Section 22 of the SMA. The petitioner contended that granting a decree for restitution of conjugal right is a ‘coercive act’ on the part of the state compelling a spouse to live with another spouse opposed to his/her will. Further, the act is violative of one’s sexual autonomy, the right to privacy, and right to live a dignified life as guaranteed under Article 21 of the Constitution of India.
The petitioner further contended that even though these sections provide a right to both husband and wife to approach the court, however, these sections are discriminatory against women and women are treated as ‘chattel’ by these laws.
The petition which was heard by a two-judge bench led by the former Chief Justice of India Ranjan Gogoi has been referred to a larger bench. The petition is pending before a three-judge bench of the Supreme Court of India.
Granting a decree for restitution of conjugal rights can compel spouses to live together but it in no way can ensure an effective relationship. Further, if such a decree violates any constitutional right, then it becomes extremely crucial to repeal it. With all the ambiguities that lie within the sections pertaining to restitution of conjugal rights, it has become extremely important for the Supreme Court to look into the matter and to ensure that this right which is considered as a remedy does not violate somebody’s fundamental rights and in case if it violates the fundamental rights, then the same must be held unconstitutional at the earliest.
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