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The legal edifice in India has always had an extremely paternalistic attitude towards women’s private lives. Under the garb of protecting families, the bodies and personalities of women are compromised and violated. While some of these directly hit the vulnerabilities of women and their lives, others do the same in a rather roundabout manner. This phenomenon is reflected in the legal provisions of restitution of conjugal rights under Hindu Marriage Act, 1955 and Special Marriage Act, 1954. This article would analyse the legal life of these provisions of restitution under Indian law. It also deals with the interaction of women’s struggles with these orthodox archaic provisions in the institutions of law.

The provisions of restitution of conjugal rights are contained in sections 9 and 22 of Hindu Marriage Act, 1955 and Special Marriage Act, 1954 respectively. Broadly, it gives the aggrieved party, either the husband or the wife, remedy to apply for restitution of conjugal rights if the other party has withdrawn from his or her society. The court, on being satisfied with the truth of the allegations and that there is no other legal ground barring such remedy, may order the other party to join the company of the aggrieved party. The enforcement mechanism for this decree is contained in Order 21, rule 32 of the Code of Civil Procedure which provides for attachment of property, detention in a civil prison, or both, if the other party fails to comply with the decree. Further, under section 13 of the Hindu Marriage Act, 1955, if there is no restitution within one year of the passing of the decree, it becomes a ripe ground for divorce. It can be assessed from a bare reading of these provisions that they inspire a legal breach into the sanctity of marital privacy.

The court considers the governmental intrusion into the bedroom of their marital house rather casual.

These legal provisions found a place in the statute book in the colonial times when women were regarded as the ‘chattel’ of the husband with no legal personality of their own. The law concerning the restitution of conjugal rights was abolished in the United Kingdom in 1970 following the report of Scarman Commission in 1969 on the futility of such a provision. However, it has remained intact in India despite being challenged vehemently more than once. The first challenge to this prejudicial law came from Rukhmabai, a physicist, who refused to cohabit with a man she was married to in her childhood.

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Justice Pinhley ruled that English law would not be applicable in this case because the marriage was not solemnised between consenting adults and Hindu law does not have any precedent to support such an action. The case aroused interest from all the quarters of national life. Despite the intense pressure, she declared that she would rather go to prison than forcibly live with her husband. To the nationalists like Balgangadhar Tilak, this was the perfect case of Hinduism being in danger because of the influence of English education. The case was opened for retrial, but it was finally closed after an appeal to Queen Victoria who overruled the appeal and set Rukhmabai free. However, this case operated more like an exception than a legal precedent.

The post-constitution India codified and internalised this provision. The most significant challenge to this law came from a Telugu-Tamil film actress, T. Sareetha. In this case, the court held that this provision, finding its roots in the medieval ecclesiastical European law, offends the right to privacy and bodily integrity enshrined under Article 21 of the constitution. The court noted that it also deprives the woman of her reproductive sovereignty, “In the process of making such a fateful choice as to when where and how if at all she should beget, bear deliver and rear a child, the wife consistent with her human dignity should never be excluded, conception and delivery of a child involves the most intimate use of her body.”

It was also noted that while this provision facially looks neutral and does not offend the classification test under Article 14 as it makes no discrimination between a husband and wife but it has to be kept in mind that “bare equality of treatment regardless of the inequality of realities was neither justice nor homage to the constitutional principles.”

the court said that the decree for restitution of conjugal rights offers the husband and wife an opportunity to settle up the matter amicably. It allegedly serves a social purpose as an aid to the prevention of break-up of marriage.

This judgment of the Andhra Pradesh High Court was dissented from by the decision of a single judge of the Delhi High Court in the case of Harvinder Kaur v. Harmander Singh Choudhry. The judge noted that sex was the only refrain of the previous judgment while he believed that sex is only one of the elements of cohabitation, not the summum bonum. He thus believed that it to be a fallacy to hold that the restitution of conjugal rights constituted “the starkest form of governmental invasion” of “marital privacy”. It was held to not be violative of Articles 14 and 21 of the Constitution.

This view was followed by the Supreme Court in the case of Saroj Rani v. Sudershan Kumar, where the court said that the decree for restitution of conjugal rights offers the husband and wife an opportunity to settle up the matter amicably. It allegedly serves a social purpose as an aid to the prevention of break-up of the marriage. The court considers the governmental intrusion into the bedroom of their marital house rather casual.

Post facto, the report of the High-Level Committee on the Status of Women in 2015 suggested deletion of these provisions relating to restitution of conjugal rights. The Consultation Paper on Reform of Family Law by the Law Commission of India also came to a similar conclusion. However, the Parliament has not acted upon it.

Also read: Why The Adultery Law Verdict Shows Promise For A More Gender-Sensitive Legal System

The issue of restitution has surfaced recently because of a petition filed by the students of a National Law University in Gujarat to strike it off the statute book. The petition terms such a law-mandated restitution as a ‘coercive act’ that violates the sexual and decisional autonomy and right to privacy and dignity guaranteed by Article 21 of the constitution. It also highlights how the operation of the provision is deeply inequitable in the context of the unequal power structures. In the post-privacy judgment era, the departure of archaic provisions like restitution of conjugal rights is very much a possibility but the question is whether the judgment will reason itself in terms of gender justice?

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