Note4Students

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.

Section 9 of the Hindu Marriage Act, 1955, which deals with restitution of 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Incidentally, in 1970, the United Kingdom repealed the law on restitution of conjugal rights.

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.

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.

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.

Supreme Court:

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.

Explained: Conjugal rights before Supreme Court

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