AUTHOR- HARSHDA BARGAL*
EDITOR- PRAKHAR VISHWAS MISHRA
In the Hindu Marriage Act, 1955 Section 9 provides for the restitution of conjugal rights, this remedy aims at restituting the marital relationship between the husband and the wife. If one spouse has withdrawn from the society of the other without any reasonable excuse the court may pass the decree of restitution forcing the spouse to cohabit with the other spouse. This decree may at the appear to be aimed at saving the institution of marriage, but it is not really the case. This remedy for restitution is highly problematic.
The Summary of Issues with this remedy
This provision of restitution of conjugal rights which has also been provided in the Special Marriage Act of 1954, originated in the English feudal society, which considered women to be a personal property or a chattel of man. In colonial times it found a place in the Indian laws . Personal law systems or any customary law does not recognize or contain such provision of the restitution of conjugal rights.
After independence, however, this provision was added in the Hindu Marriage Act and the Special Marriage Act . So exactly why is this provision so problematic in today's times? First, because it grossly violates the fundamental rights of individuals guaranteed in part III of the Constitution. Secondly, it is discriminatory against women in particular. Thirdly, when we take into account a broader picture of conjugal relations and what has been provided as exception sub-section 2  in section 375 of the Indian Penal Code it is highly degradable for the dignity of women.
An Analysis of the Issues in detail
We are guaranteed some fundamental rights in our constitution which are justiciable, that means, when these rights are violated under article 32, we can approach the honorable court to enforce them and article 13 provides that any law that violates these rights should be declared unconstitutional. The remedy of restitution violates particularly the rights guaranteed under article 14, 15, and 21 of the Constitution. What is meant by fundamental rights? Fundamental rights are the line delineated for government action.
Under article 14 it has been guaranteed that every person has equality before the law and equal protection of the laws enacted by the legislature. But, the provision of the restitution of conjugal rights violates article 14 as it does not guarantee equality before the law. Though in words the provision has been made available to both the husband and the wife equally in the spirit it is discriminatory against the wife. In a highly patriarchal society like that of ours where, a place for cohabitation of the husband and the wife is usually a husband's place, this remedy is equally available to the husband and the wife.
This remedy has become a tool in the hands of a husband to harass his wife mentally and sexually by forcing her to cohabit with him. It gives a warrant to the patriarchal society to control the choices that women make for themselves. Though the reasonable excuse is available for defense, and the burden of proof lies on the respondent to prove that the reasonable excuse exists and from many instances, it is clear that this excuse is not adequate to safeguard the husband to misuse this provision against the wife.
Article 15 prohibit to make any discrimination on grounds of sex only and here also this provision violates article 15. Article 21 has been interpreted very broadly by the Supreme Court which guarantees right to life, liberty and human dignity. In KS Puttaswamy vs UOI , the Supreme Court recognized that there exists a fundamental right to privacy guaranteed in our constitution. The right to privacy includes a right to be left alone, it is expected that society or state would not interfere in the private sphere of the individual as long as no harm is done to the public as such.
In Joseph Shine vs. UOI, The Supreme Court stated that the state should restrict itself from intruding into the private sphere of matrimonial relationship between a husband and the wife. The right to privacy also includes a right to individual autonomy and a right to choose which in turn is an intrinsic part of the right to liberty and human dignity. A fundamental right to privacy should be explicitly recognized as a fundamental right to be left alone by the state unless such intrusion is necessitated by just, reasonable and fair law.
Section 375 of the Indian Penal Code includes an exception which legalizes, marital rape or sexual intercourse by a husband with his wife who is above the age of 18 without her consent is stated to be not a rape. So, this gives us the interpretation that Indian laws legalize marital rape. Sexual autonomy of women seems to have no place here. When keeping in mind this exception under section 375 and what the remedy of the restitution espouses to do the consequence is barbaric.
A wife after the decree of restitution is forced to cohabit with her husband and she is not protected from any sort of sexual harassment she will have to go through. Consent to marriage is treated as a lifelong consent to sexual intercourse! What times are we living in? Is it a medieval society? Women are the one who has been at the receiving end of this archaic provision due to the patriarchy etched in our society. The provision for the restitution of conjugal rights is not only a gross violation of human rights but is contrary to the justiciable fundamental rights given in our constitution.
In T Sareetha vs Venkat Subaaih, 1983 the Andhra Pradesh high court highlighted that ' the remedy offends the inviolability of the body and mind and invades the marital privacy and domestic intimacies of such person'. Unfortunately, the Delhi high court in Harminder Kaur vs Harminder Singh Chaudhary tried to defend the remedy and later the Supreme Court did the same in Saroj Rani vs Sudharshan Kumar Chaddha case.
The need of the hour: declare this remedy as unconstitutional and violative of human rights
Every year on November 25, International Day for the Elimination of Violence against Women is observed. This year assumes great significance amid the COVID 19 pandemic. During the unprecedented times, the lockdown was imposed for months in most of the parts of the world. The lockdown saw an alarming increase in the report of domestic violence cases. Homes are not necessarily a safe place for everyone and especially the young girls and women.
The government of India is under an obligation of Universal Declaration of Human Rights (UDHR), 1948, and it is a sociopolitical obligation of the government that it prevents such violence and harassment against women. We must not forget that women's rights are human rights. This archaic remedy is highly problematic, violative of fundamental rights and needs to be done away with immediately. We borrowed this remedy from the English Common Law but England has itself abolished this remedy in the 1970s itself. It is important that we not only recognize but grant very intrinsic and inalienable fundamental rights to women in the true sense and abolish this remedy from our laws.
Every year November 25 is observed as an International Day for the Elimination of Violence against Women. This year assumes great significance amid the COVID-19 pandemic. During the unprecedented time's lockdown were imposed for months in most part of the world. The lockdown saw an alarming increase in the report of domestic violence cases. Homes are not necessarily a safe place for everyone and especially the young girls and women.
The government of India is under obligation of Universal Declaration of Human Rights (UDHR), 1948 and also it's a sociopolitical obligation of government that, it prevents such violence and harassment against women. This archaic remedy is highly problematic and need to be done away with immediately. We borrowed this remedy from the English Common Law but England has itself abolished this remedy in the 1970s. It is important that we not only recognize but grant very intrinsic and inalienable fundamental rights to women in true sense and abolish this remedy from our laws. Forcing spouses into cohabitation cannot be a way forward. Human rights cannot be a casualty of such archaic laws.
1. Section 9 of The Hindu Marriage Act, 1955
2. Bansari Kamdar, “In India, a Man Can Still Legally Rape His Wife”, The Diplomat (August 17, 2020), https://thediplomat.com/2020/08/in-india-a-man-can-still-legally-rape-his-wife/
3. Upendra Baxi, “Right to constitutional remedies is the Constitution’s soul. Surely SC is mindful of that”, The Indian Express (November 25, 2020 8:45:52 am), https://indianexpress.com/article/opinion/columns/protecting-article-32-7064324/
4. K S Puttaswamy v UOI, (2017) SC No. 494/2012
5. Joseph Shine v UOI, (2018) SC No. 194/2017
6. T Sareetha v T Venkata Subbaiah (1983), AIR 1983 AP 356
7. Harminder Kaur v Harmindar Singh Chaudhary (1983), AIR 1984 Delhi 66
8. Saroj Rani v Sudharshan Kumar Chadha (1984) AIR 1562
9.“International Day for the Elimination of Violence against Women 25 November”, https://www.un.org/en/observances/ending-violence-against-women-day
10.“Universal Declaration of Human Rights”, https://www.un.org/en/universal-declaration-human-rights/index.html
The Author Harshda Bargal is a B.A.LLB(Hons) student at Savitribai Phule Pune University, Pune.
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