This article is written by Nidhi Singh, a 3rd law year student from Lloyd Law College, Greater Noida.
Section 9 of Hindu marriage
act, 1955 deals with the Restitution of conjugal rights which basically means Restoration of martial relations. We can say that if either spouse left his/her home or withdrawing from society without any reasonable excuse, in this case other spouse may appeal to the court for Restitution of conjugal rights u/s 9 of HMA.
Restitution of Conjugal Rights finds its origin from Jewish law. This remedy was adopted into Indian legislature neither from the Dharmashtra nor any personal law in the Indian subcontinent, but through the English Common Law of the British Raj.
Existing Scenario of S.9 of HMA,1955
Under the existing laws in India, the spouse seeking restitution of conjugal rights can get a decree directing his other spouse to cohabit and take part in sexual intercourse.
He can also seek coercive measures in the form of attachment of property in case the spouse wilfully disobeys the decree of restitution.
On the face of it the law seems gender neutral, it is actually deeply patriarchal and is based on feudal English law, which regards a woman as ‘chattel’ or personal possession of the husband. the legal framework is violative of the right to privacy, individual autonomy and dignity of individuals (both men and women) guaranteed under Article 21. It places a disproportionate burden on women and is therefore violative of Articles 14 and 15(1) of the constitution.
PIL’s filed against this law as it violates Article 14 and Article 21,
- Sneha Sharma[1], an aggrieved woman has filed an intervention application supporting the petition. In her application, she has said that the interference by the State into the private and intimate affairs of a person who withdraws himself or herself from the company of another person was unreasonable, unfair and unjust.
The petitioners have contended that provisions pertaining to the restitution of conjugal rights place a disproportionate burden on women and are therefore violative of Articles 14 and 15(1) of the Constitution. The provisions, they contend, are also violative of the rights to privacy, individual autonomy and dignity of individuals (both men and women) which are guaranteed under Article 21 of the Constitution.
- A two-judge bench led by Chief Justice of India Ranjan Gogoi[2] referred the issue to a larger bench while hearing a public interest litigation (PIL) that said the provision was anti-women as it forces a woman to go back to her husband against her wishes and in violation of her rights.
- These provisions provide the statutory scheme for the restitution of conjugal rights, which involves restoration of all the “rights and privileges arising from marriage… including the mutual relationship of companionship, support and sexual relations”.
Under the existing laws in India, the spouse seeking restitution of conjugal[3] rights can get a decree directing his other spouse to cohabit and take part in sexual intercourse. - The law was also inconsistent with the changing times where the private interest of sexual autonomy, dignity and happiness of an individual is put before concerns such as societal morality or family life. Thus, there exists no compelling interest for the state to interfere in such matters.
The consequence of a decree of restitution cause extreme hardship to a woman, who has to return to her marital homes and responsibilities, than it does to a man.
Constitutionality of S.9 HMA,1955 – How it violates Article 14 and Article 21 ?
The question of the constitutionality of exercising the remedy of restitution of conjugal rights had been initially presented before the Andhra Pradesh High Court in 1983. In the case of T. Sareetha v. Venkata Subbaiah[4], it was argued in this court that the right to privacy confers upon a party to a marriage the ‘right of free choice as to whether, where, how and by who her body is to be used for procreation of children’ and by recognizing the remedy of restitution of conjugal rights under Sec. 9, the State is violating the fundamental liberty, privacy[5] and dignity guaranteed by Article 21 of the Indian Constitution. Further, since the remedy was available to both to married men and women it was contended that by treating the wife and husband, who are inherently unequal, as equals, the impugned section offends the rule of equal protection of laws and, hence, contradictory to the essence of equality given under Article 14.
Subsequently, within less than a year, the issue of the constitutionality of Sec. 9 had re-appeared, this time before the Delhi High Court in the case of Harvinde[6]r Kaur v. Harmander Singh where the view of the Andhra Pradesh High Court was dissented from. The state of conflict with relation to the disputed section’s constitutionality was resolved by the Hon’ble Supreme Court in the same year, in the case of Saroj Rani v. Sudarshan Kumar[7] where Justice Sabyasachi Mukhatji had upheld the Harvinder case and overruled the T. Sareetha case for the following cause.
The purpose of the decree of restitution of conjugal rights is only to offer an inducement for the husband or wife to live together and did not place emphasis on the compulsion of an unwilling wife to engage in sexual intercourse with her husband. The object of the decree was only to bring about cohabitation between the estranged parties so that they can live together in the matrimonial home in amity. Hence, the restitution of conjugal rights aimed at the consortium and not merely sexual intercourse.
[1] https://theleaflet.in/supreme-court-issues-notice-to-attorney-general-on-a-plea-challenging-the-constitutional-validity-of-restitution-of-conjugal-rights-under-the-hindu-marriage-act-and-special-marriage-act/
[2] https://economictimes.indiatimes.com/news/politics-and-nation/sc-to-decide-validity-of-provisions-governing-restitution-of-conjugal-rights/articleshow/68279688.cms?from=mdr
[3] https://www.firstpost.com/india/compelling-wife-to-cohabit-with-husband-violates-fundamental-rights-time-sc-reviewed-section-9-of-hindu-marriage-act-6200151.html
[4] https://www.casemine.com/judgement/in/5608f6e3e4b014971113eab3#19
[5] http://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html
[6] https://www.casemine.com/judgement/in/560909a6e4b01497111704b3
[7] https://www.casemine.com/judgement/in/5609ac10e4b014971140defa
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