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RECONSIDERING THE CONSTITUTIONALITY OF RESTITUTION OF CONJUGAL RIGHTS

Updated: Sep 10

POST-PUTTASWAMY JUDGEMENT ON PRIVACY AND POST-COVID-19

Introduction

In India, the concept of individuality dilutes in a family system, especially for a married woman. Indian women have achieved great accolades and recognition across the world for their work but deep-down India still remains a patriarchal society and the law of restitution of conjugal rights reaffirms it. The COVID-19 pandemic has worsened the situation by increasing the number of domestic violence cases. Post COVID-19, the cases of divorce and restitution of conjugal rights will naturally see a rise and thus, the discussion on the constitutionality of restitution of conjugal rights is apt at this stage.

Conjugal Rights and Debate Over the Sacredness of Marriage

The Hindu Marriage Act, 1955 (HMA 1995) under Section 9 provides for the restitution of conjugal rights. According to Section 9, if either spouse withdraws from the company of the other without proper cause, the other may approach the court seeking a decree of restitution of conjugal rights irrespective of whether the former wants to continue living with the other. Section 13 of the Hindu Marriage Act, 1955 reads that if there is no restitution within one year of the decree of the court, it becomes a valid ground for divorce.

It has been argued that the restitution of conjugal rights has no place in Indian society and is inherited from the colonial era. However, one must not overlook the extreme emphasis imposed on the sacredness of marriage by Indian society. The courts in India through a plethora of decisions, such as Tokugha Yepthomi v. Apollo Hospital Enterprises Ltd., and Anuradha Samir v. Mohandas Samir, have legitimized the perceived sacredness and sacrosanct nature of Hindu marriages. Further, the customs and traditions often take primacy over the fundamental freedoms of an individual in a family system.

The Legality of Section 9- Mapping The Judicial Decisions

The challenge to the validity of the provision of restitution of conjugal rights dates back to 1885 in the case of Bhikaji v. Rukhumabai where Justice Pinhey did not allow the petition seeking restitution, on the grounds that the marriage was not between two consenting adults and the provision has no roots in Hindu law.

The Andhra Pradesh High Court in T Sareetha v. Venkatasubiah found Section 9 of HMA 1995 to be unconstitutional. However, contrary to the Andhra Pradesh High Court’s decision, the Delhi High Court held Section 9 of HMA 1955 to be constitutional in Harvinder Kaur v. Harmander Choudhry.

The Supreme Court of India, when presented with the opportunity to decide the constitutionality of the impugned law, held Section 9 to serve a social purpose and to be an attempt to reconcile differences and conflicts in marriages. The court, therefore, held the law to be constitutional. The decision of the Supreme Court reaffirmed the society’s perceived sacredness of the institution of marriage and undermined the individuality and dignity of the woman.

In cases of restitution, it is often the wife who suffers more than the husband especially in a patriarchal setup. In India, post-marriage the wife moves out of her house to her husband’s house and often leaves behind her individuality as well. It must also be remembered that, in India, child marriages, and non-consensual arranged marriages are common. Despite the recommendations of the Law Commission of India (2018), restitution of conjugal rights remains in our laws.

Fortunately, in Justice K S Puttaswamy (Retd.) and Anr. V. Union of India, a decision authored by Justice D Y Chandrachud analyses the concept of privacy in the context of feminist perspectives. The Court held that the concept of privacy is undermined and “family honour” is used as a garb to assert patriarchal mindsets. Restitution of conjugal rights as a doctrine presumes that what happens in a family must remain and be resolved within the family. This presumption is contrary to the Puttaswamy decision which upholds the right to privacy of an individual and not family. The decision upholds individual dignity and not family dignity. The decision further recognizes the right of an individual to make the decision in respect of their intimate relations, that is, decisional privacy. Thus, recognizing the right to dignity and privacy of a woman within the domestic domain. The decision lifts the veil separating married women from the right to dignity and privacy.

Puttuswamy provides a ray of hope to women who have been denied privacy and dignity within the institution of family and is a much-needed judicial recognition of the large-scale violence and gender-based discrimination that Indian women are forced to put up with under the pressure of upholding the family honour. The decision is a precedent to argue for the unconstitutionality of the restitution of conjugal rights. The restitution of conjugal rights forces a spouse to remain in the company of the other, on the parochial notion that marriages are sacred to the extent that it considers individual privacy and dignity to be below the institution of marriage itself.

The article does not intend to disregard the importance of the institution of family in society. Rather the article emphasizes the need to place individual rights and liberty above the family structure In Part III of the Constitution of India, except the Articles protecting the right to religion, culture, and linguistics, the other Articles aim to protect an individual’s right rather than the society’s. Unlike several democracies, India has recognized universal adult franchise from the beginning. Despite the recognition of the economic and political rights of women in India, a significant number of women are politically and economically oppressed by Indian social institutions.

Conclusion

In the last two years since the Puttaswamy decision, the Supreme Court has referred to it in several decisions which liberated individuals (especially women) from the vicious web of family honour, societal expectations and discrimination, and religious prejudices such as the Sabarimala decision, Navtej Singh Johar, and Joseph Shine among others. The decision of Puttaswamy is one of the greatest contributions of the Supreme Court of India to further the cause of the right to equality and liberty of women in all spheres of life, and even though courts are exercising restraint while passing decree of restitution, the law remains to be an affirmation of ‘family over freedom’ notion imposed on women by the society.

Title Image Source: The Indian Express


The article has been written by Nikhil Erinjingat, whois a third-year law student at Ramaiah College of Law, Bengaluru. He is the co-founder of Ramaiah College of Law Constitutional Law Club.

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