Authored by Kavya Bajaj, a 2nd-year student at Vivekanand Institute of Professional Studies.
This article would be handling legal rights, how women are forced to possess non-consensual sexual activity within the name of restitution of legal right, and how the decree of restitution of conjugal rights violates freedom of association under Article 19(1)(c), 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). Furthermore, how it violates the right to privacy, dignity, and autonomy of an individual.
In India, marriage is considered a sacrament and a holy bond. However, if the marriage doesn't work, a situation may evolve in which one partner does not feel at ease living with the other. The restitution of conjugal rights, on the other hand, gives the spouse the right to summon the other spouse to live with them again. While this right appears to be valid in the sense that it provides a solution to rescue the relationship and the family, it does not appear to be legal in the sense that it requires one to stay with someone unwillingly.
Consequently, this right has always been a contentious issue, with doubts about its constitutional validity. Some of the other questions that need to be addressed are ‘Whether a man would be held liable for marital rape if he is merely claiming his ‘conjugal right’ to have sex with his spouse?’ and ‘Is it possible that this right infringes on a spouse's right to privacy by compelling him or her to live with the other spouse, thereby shredding the right over the self-body?’.
Sexual violence is prevalent and presents itself in a variety of ways in all aspects of life, including the family, which is the most basic unit of human civilization. Rape is a breach of a private person's autonomy that should be condemned by any means.
Rape is defined as "non-consensual sexual intercourse with a woman" under Section 375 of the Indian Penal Code. If sexual intercourse occurs between a woman and her husband, and his wife is over the age of 15, an exception to the said rule exempts the husband from legal repercussions[i]. Although several countries have previously made marital rape illegal, India is one of 36 countries that have yet to do so. It is assumed that when a woman gets married, she gives her agreement to consummate forever. On the one hand, the issue concerns a woman's dignity, and on the other, it is linked to the conjugal right to sex and cohabitation.
Restitution of Conjugal Rights and its Validity
Section 9 of the Hindu Marriage Act, 1955, which deals with restitution of conjugal rights, reads: “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 restitution of conjugal rights and the court, on being satisfied with 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.”
However, the burden lies on the person who has withdrawn to prove that there is a reasonable excuse for their withdrawal. The essentials include that they must not have been cohabitating, and there's no reasonable ground for the withdrawal of one spouse from the other, and not performing their marital obligation if both the conditions are fulfilled, then the aggrieved party may file for the restitution of conjugal rights. But, the court may not grant a decree when it is proved that there exists a reasonable ground or if it is proved that the petitioner has done any matrimonial misconduct which makes it difficult for them to cohabit and fulfil their matrimonial obligations then it can be rejected on the discretion of the honorable court.
Reasonable grounds can include the fact that the petitioner has an incurable sickness, suffers from frequent episodes of insanity or unsound mind, or has converted to another religion.
Violation of Right to Privacy
The constitutionality of Section 9 has always been a point of contention. The High Court found Section 9 of the HMA, 1955 unconstitutional in the case of T. Sareetha v. T. Venkata Subbaiah[ii] because it violated the right to privacy and human dignity provided by Article 21 of the Indian Constitution. Section 9 is the most egregious breach of the right to privacy, according to P.A. Choudhary, J. A spouse's right to regulate her own body is violated when she is forced to have sexual intercourse with her spouse. A spouse's consensual union with her husband in their relationship cannot be forced by the State.
Moreover, in the recent case of K. S. Puttaswamy v. Union of India[iii], the SC upheld the right to privacy as a fundamental right that grants individuals complete autonomy over their bodies.
The Supreme Court in Gobind v. State of Madhya Pradesh[iv], in which the court stated that "the right to privacy protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child-rearing”, implies that the law cannot intrude into a family's private space.
Violation of Article 19(1)(c)
A spouse is compelled to reside with his or her spouse against his or her will if a decree of restitution of conjugal rights is granted. This is a violation of Article 19 of the Indian Constitution. In Huhhram v. Misri Bai[v], the wife left her husband because her father-in-law had an evil eye on her, and the husband treated her terribly. Even after that, the spouse was awarded restitution of conjugal rights by the Madhya Pradesh High Court. It can be determined that if she was abused by her father-in-law as a result of her relationship with her husband as a consequence of the court's ruling, then the court's decree is responsible for the incident.
Violation of Article 19(1)(e) and Article 19(1)(g)
The decree of restitution of conjugal rights violates a spouse's right to reside in any region of India when he or she is forced to live with another spouse in his or her marital residence. Furthermore, in many circumstances, it infringes on one's freedom to practise any profession. The wife in the case of Tirath Kaur v. Kripal Singh[vi] was away from her husband to practise her profession. However, due to some disagreements, the husband asked his wife to give up her employment, and when she refused; he submitted an application for the restoration of marital rights. The wife was forced to live with her husband as a result of the court decision.
It Can Become a Ground for Marital Rape
In the case of Saroj Rani v. Sudarshan Kumar Chadha[vii], Mukherjee J. noted that the objective of Section 9 is to reunite an estranged couple so that they can live together in peace in a matrimonial home. Mukherjee J. answered the question about whether the provision allows a spouse to use any kind of force to have sexual intercourse with their respective spouse and clarified that the impugned Section's goal is 'consortium', not sexual intercourse.
The fight against marital rape and restitution of conjugal rights has gained a new lease of life with the Supreme Court’s nine-judge Bench upholding privacy as a “constitutionally protected right” which gives a person complete authority to decide one’s matters of personal intimacies, the sanctity of family life, the home, sexual orientation, etc.
The Supreme Court, in its recent Joseph Shine ruling, concluded that the state cannot exercise authority over a person's private affairs. "The right to privacy is an inalienable right, closely linked to the inherent dignity of the person and the right to autonomy and self-determination to make decisions", the court said. The court has also held that any state interference in a person's choice of mate has a "serious deterrent effect on the exercise of constitutionally guaranteed freedoms"[viii].
Restitution of Conjugal Rights decree can compel spouses to live together, but it cannot guarantee a healthy relationship. The whole purpose of this section is to save the marriage. It gets subsiding when either of the party has other objectives when filing for the same. In addition, Section 13 (1A) of the Hindu Marriage Act, 1955 specifies that if it is not followed, it can be used as a basis for divorce. Even though the purpose was noble, it has lost its relevance as times and social settings have changed, and it does not have the desired impact. The number of cases of abuse and redundancy are rapidly increasing. Despite the Supreme Court's decision, the clause violates Articles 19 and 21 of the Constitution.
The restitution of conjugal rights aims to promote reconciliation and marriage stability between the parties. It strives to keep society from being degraded. However, the parties must make the final decision whether to obey the ruling of restitution of conjugal rights and continue the matrimony or not.
[i]Anusha Agarwal, Only 36 countries have not criminalized marital rape, India is one of them; “The Leaflet” (November 2,2020); https://www.theleaflet.in/only-36-countries-have-not-criminalised-marital-rape-india-is-one-of-them. [ii]T. Sareetha V. T. Venkata Subbaiah, (1983) AIR AP 356 (India). [iii] K.S. Puttaswamy V. Union of India, (2017) 10 S.C.C. 1 (India). [iv] Gobind V. State of Madhya Pradesh, (1975) AIR 1378 (India). [v] Huhhram V. Misri Bai, (1979) AIR MP 144 (India). [vi] Tirath Kaur V. Kripal Singh,(1964) AIR Punjab 28, (India). [vii] Saroj Rani V. Sudarshan Kumar Chadha, (1984) AIR 1562. [viii] Krishnadas Rajagopal, Plea on conjugal rights pending in Supreme Court; The Hindu (Jan 23, 2022). https://www.thehindu.com/news/national/months-since-sc-heard-challenge-to-restitution-of-conjugal-rights-which-pits-right-to-privacy-with-sanctity-of-marriage/article