From UPSC perspective, the following things are important :
Prelims level : Not much
Mains level : Conjugal rights
The Supreme Court is expected to begin hearing a fresh challenge to the provision allowing restitution of conjugal rights under Hindu personal laws.
What is the provision under challenge?
- Section 9 of the Hindu Marriage Act, 1955, which deals with restitution of conjugal rights.
What are conjugal rights?
- Conjugal rights are rights created by marriage, i.e. the right of the husband or the wife to the society of the other spouse.
- The law recognizes these rights— both in personal laws dealing with marriage, divorce etc and in criminal law requiring payment of maintenance and alimony to a spouse.
- The concept of restitution of conjugal rights is codified in Hindu personal law now, but has colonial origins and has genesis in ecclesiastical law.
- Similar provisions exist in Muslim personal law as well as the Divorce Act, 1869, which governs Christian family law.
- Incidentally, in 1970, the United Kingdom repealed the law on restitution of conjugal rights.
How can a case under Section 9 be filed?
- If a spouse refuses cohabitation, the other spouse can move the family court seeking a decree for cohabitation.
- If the order of the court is not complied with, the court can attach property.
- However, the decision can be appealed before a High Court and the Supreme Court.
- Normally, when a spouse files for divorce unilaterally, the other spouse files for restitution of conjugal rights if he or she is not in agreement with the divorce.
- The provision is seen to be an intervention through legislation to strike a conciliatory note between sparring spouses.
Why has the law being challenged?
- The law is being challenged now on the main grounds that is violative of the fundamental right to privacy.
- The plea argues that court-mandated restitution of conjugal rights amounted to a “coercive action” on the part of the state, which violates one’s sexual and decisional autonomy, and right to privacy and dignity.
- In 2019, a nine-judge Bench of the Supreme Court recognised the right to privacy as a fundamental right.
- The verdict in the privacy case set the stage for potential challenges to several laws such as the criminalization of homosexuality, marital rape, restitution of conjugal rights, the two-finger test in rape investigations.
Question over gender-neutrality
- Although the law is ex-facie (‘on the face if it’) gender-neutral since it allows both wife and husband to seek restitution of conjugal rights, the provision disproportionately affects women.
- Women are often called back to marital homes under the provision and given that marital rape is not a crime, leaves them susceptible to such coerced cohabitation.
- It will also be argued whether the state can have such a compelling interest in protecting the institution of marriage that it allows legislation to enforce the cohabitation of spouses.
What has the court said about the law earlier?
- In 1984, the Supreme Court had upheld Section 9 holding that the provision “serves a social purpose as an aid to the prevention of break-up of marriage”.
- Leading up to the Supreme Court intervention, two High Courts — those of Andhra Pradesh and Delhi — had ruled differently on the issue.
AP High Court:
- In 1983, AP High Court had for the first time struck down the provision and declared it null and void. It cited the right to privacy among other reasons.
- The court also held that in “a matter so intimately concerned the wife or the husband the parties are better left alone without state interference”.
- The court had, most importantly, also recognised that compelling “sexual cohabitation” would be of “grave consequences for women”.
Delhi High Court:
- In the same year, a single-judge Bench of the Delhi High Court took a diametrically opposite view of the law and upheld the provision.
- From the definitions of cohabitation and consortium, it appears that sexual intercourse is one of the elements that go to make up the marriage.
- But it is not the summum bonum (the ultimate aim). As if marriage consists of nothing else except sex.