ABSTARCT
In Indian society, Marriage is considered a sacred union not just between the husband and the wife, but also between their families. Up until the 20th century, marriage was considered an indissoluble union. However, with the advancement in the society, several matrimonial remedies were provided to the spouses, which include restitution of conjugal rights, judicial separation and divorce. Legislations and case laws further solidified these remedies as the times progressed. The matrimonial remedy for restitution of conjugal rights was faced with the question regarding the constitutionality of the same in 1980s and hence began the debate on the constitutionality. The Andhra Pradesh High Court had declared the remedy as unconstitutional in 1983 however, the Delhi High Court and the Supreme Court in the following year overruled that decision. The issue is pending before the Hon’ble Supreme Court of India in a petition filed by certain law students of the Gujarat National Law University under the title of Ojaswa Pathak v. Union of India. This paper will attempt to analyse the debate from various angles and express an opinion on the issue. In this paper, I have attempted to analyse this remedy for restitution of conjugal rights from the angle of its constitutionality. I will attempt to lay down the views of various scholars on this issue and what the courts have had to say regarding the legal principles involved. I will deal with what the contemporary debate on this issue is and what other jurists have to say about it.
KEYWORDS
Marriage, Restitution of Conjugal Rights, Matrimonial remedy, Constitutionality, sexual autonomy, Fundamental Rights, Human Rights
INTRODUCTION
Restitution of conjugal rights literally means restoration of marital relations. This matrimonial remedy has been provided for in various legislations pertaining to personal laws. The primary objective of this remedy is to provide the couple a chance to work on their marriage by attempting resumption of cohabitation. This remedy was formulated by the legislature considering the conception in Indian society, especially among the Hindus, of marriage being a sacred and auspicious union with impact on the social sphere around it. As per Indian legacy, marriage, instead of merely being a sexual relationship with exchange of fluids, is instead the meeting of the minds of the spouses.
On the plain reading of the legislations, it would appear that the remedy is formulated in gender-neutral terms and does not discriminate between the rights of either of the spouses to obtain a decree for restitution of conjugal rights. However, the ground reality is antithetical to the law because it is often seen that this remedy is used more frequently by the husband, than it is by the wife. The same was observed by the Hon’ble High Court of Andhra Pradesh in the case of T. Sareetha v. T. Venkata Subbaiah. Women are often faced with several obstacles, like financial, familial or social which act as deterrent for them from approaching the court.
RESEARCH METHODOLOGY
The research methodology adopted by the researcher while curating this research paper was that of doctrinal research. The researcher relied on pre-existing literature during the course of this research.
Both primary and secondary sources of data were referred to. Primary sources of data included the legislations and judgments pertaining to the topic while secondary sources included pre-existing scholarly articles, journals, websites and blogs and newspapers.
REVIEW OF LITERATURE
- R. Jayah and Dr. Prabha S Nair, 2022
This paper talks about how the remedy for restitution of conjugal rights has its origins in the feudal English Law where marriage was considered a property deal and the wife’s status was restricted to the status similar to that of a chattel for her husband.
This line of reasoning is however, not applicable to India because in Indian society, marriage is considered a holy and pious sacrament. Hence, such a remedy should not be applicable to Indian Law.
- Mayank Gupta and Ojaswa Pathak, 2019
This paper takes on the matrimonial remedy and argues for it being rendered unconstitutional on the grounds of it being an attack on individual dignity, an attack on equality and an attack on freedom of association.
This paper argues against the this remedy and crticises the Delhi High Court and the Supreme Court’s decisions in the cases of Harvender Kaur v. Harmander Singh Choudhry and Saroj Rani v. Sudarshan Kumar Chadha respectively.
- Saumya Uma, 2021
This paper argues for abolishing the remedy by giving an evolutionary view of the how the remedy came into being. The author attempts to look at it from the Human Rights perspective as well and analyses the recent petition before the Supreme Court of India against the matrimonial remedy for restitution of conjugal rights.
- Deepnainee Kaushal, 2021
This paper deals with the privacy aspect of the restitution of conjugal rights. Paper argues whether the remedy is violative of the right to privacy of the wife or not. The paper recognizes that the sexual autonomy of the individual is included in the right to privacy of the individual.
HISTORICAL BACKGROUND OF THE REMEDY
Restitution of Conjugal Rights as a legal remedy never existed in the Indian society. It was in the English Law that it saw its origins under which the unwilling spouse was forced to return to the other spouse and cohabit with them by way of coercive machinery of the law. St. Augustine in 430 AD, had pronounced the ‘doctrine of indissolubility of marriage’ which was enforced by the Canon Law in the 12th Century. Because of this doctrine, the spouses could not be granted divorce and thus making them tied to each other unless they were able to get the marriage annulled on ground of it being a void marriage. In the Canon Law, it was considered that upon marriage, the wife and husband became one single being and they could not be separated. The wife was given the status of the chattel of the husband in such a marriage and became the property of the husband.
In India, the concept of restitution of conjugal rights was first observed in India in the Rukhmabai judgment in 1885 where the child bride refused to cohabit with her husband who, in turn filed a case in the court for restitution of conjugal rights. The judgment was severely criticized by several political leaders of that time, who saw it as an unwarranted intrusion on the Hindu marriage laws by the imperial rulers and imposition on the Orientals.
In 1869, the remedy was also included in the Indian Divorce Act in Section 32. This Section was applicable primarily to the Christians but the remedy could be availed by anyone. In Muslim Law, because of husband’s superiority in the marriage, the fear of divorce often deterred the women from filing for restitution of conjugal rights.
Post the Hindu Marriage Act, 1955, the Hindu marriage, which used to be an unbreakable sacrament was no longer such because there were various matrimonial remedies introduced such as judicial separation and divorce. One of the matrimonial remedies introduced was that of restitution of conjugal rights under the section 9, which stated that any of the spouses could request the court for a decree under section 9 provided that there was no reasonable excuse for the other spouse’s staying away.
However, the reasonable excuse was not well defined by the court because it was often seen as being in the favor of the husband than the wife. Justice SS Sandhawalia in the case of Kailashwati v. Ayodhia Prakash held that the wife was bound by the wishes of his husband on whether she could stay away from her matrimonial home to earn livelihood. The courts however took a progressive step in the case of Swaraj Garg v. K.M. Garg where the Delhi High Court held that the husband was not entitled to decide where the couple is to stay and the wife can take up a job away from the husband.
JUDICAL INTERPRETATION ON CONSTITUTIONALITY
The question on the constitutionality of the remedy arrived before the judiciary when the the Andhra Pradesh High Court adjudicated upon the case of T. Sareetha v. T. Venkata Subbaiah. In this case, the Hon’ble High Court analysed the remedy and held that the remedy was a savage and barbarous one and it had a disproportionate impact on the women. The court said that:
“a decree of restitution of conjugal rights constitutes the starkest form of governmental invasion of Personal identity and individual’s zone of intimate decisions. The victim is stripped of its control over the various parts of its body, subjected to the humiliating, sexual molestation, accompanied by a forcible loss of precious right to decide when if at all her body should be allowed to be used to give birth to another human being. Clearly, the victim loses its autonomy of control over intimacies of personal identity. Above all the decree for restitution of conjugal right makes the unwilling victims body, a soulless and joyless vehicle for bringing into existence another human being.”
In the subsequent year, however, within a few months of the T. Sareetha judgment, the Delhi High Court gave a judgment in a case pertaining to the constitutionality of the provision where, the Hon’ble High Court held that the provision for restitution of conjugal rights is not violative of the Constitutional principles. It held that the Andhra Pradesh High Court over-emphasized on the sexual part and failed to recognize the main objective behind the remedy, which was to further the cohabitation and consortium between the couple. The Delhi High Court failed to examine the impact that the remedy has on the women and the adversities that they might have to face because of such a provision.
Because of these conflicting opinions by two High Courts, the Supreme Court of India took upon the issue in the case of Saroj Rani v. Sudarshan Kumar Chadha where it dealt with the issue of constitutionality and held that the provision was not violative of the Constitution of India. The Court, while upholding the decision of the Delhi High Court, held that this provision is not merely created by the statute, but also by the very institution of marriage itself.
CONTEMPORARY DEBATE
Several eminent jurists and scholars engaged in the field of personal laws have expressed their opinions on the issue and are of the opinion that the remedy should be done away with. They have argued that the remedy is an unnecessary violation of the Right to Privacy of woman and her matrimonial home. The opinion common in the multitude of the opinions delivered in the K.S. Puttaswamy case, was that each person has the right to bodily autonomy, i.e., take the decisions which directly affect the body of the individual. The Supreme Court of India in the judgment of Joseph Shine v. Union of India, held that if the constitutional provisions are violated in the familial spaces, then such spaces cannot be treated as private spaces.
The matrimonial remedy is further, violation of Article 19(1)(c) of the Indian Constitution which guarantees the Right to freedom of association or union. The court by way of this remedy, forces such a union on the spouses which is not acceptable to the spouses which was made evidently clear by the cases of Huhhram v. Misri Bai and Atma Ram v. Narbada Devi where the court passed the decree for restitution of conjugal rights despite the unwillingness of the parties involved.
It must also be observed that the remedy is an attack on the right to equality of the women. The Supreme Court in the case of Anuj Garg v. Hotel Assn. of India held that the boundaries of right to equality change with changing society and observing the change that the society has undergone, it must be observed that the husband should not be allowed to dictate the terms and the wife should have an equal say in decisions.
Even the English Common Law, where this remedy was borrowed from, abolished the said remedy in 1970 through Section 20 of The Matrimonial Proceedings and Property Act, 1970, following the representation for the same made by the Law Commission in 1969. In 2015, a High Level Committee on the Status of Women in India was formulated and the report submitted by this Committee also argued for abolition of this remedy on the grounds that it is used to deny the maintenance to wives in divorce proceedings. The law Commission of India in 2018 said that the decree of Restitution of Conjugal Right forces the woman to leave the hard earned job and cohabit with her husband which is contrary to Right to Freedom of the woman.
In addition to this, the provision for Restitution is in violation of several International Human Rights covenants, which India is a signatory to. These include the United Nations Convention on Elimination of Discrimination against Women (CEDAW), International Covenant on Social, Economic and Cultural Rights and International Covenant on Civil and Political Rights. Article 5(a) of CEDAW obligated the parties to eliminate the harmful practices ‘based on the idea of the inferiority or superiority of either of the sexes or on stereotyped roles for men and women’.
A group of students from Gujarat National Law University, Gandhinagar have challenged the provision before the Supreme Court of India under the title of Ojaswa Pathak v. Union of India on the grounds that the legal framework imposes burden on women and is violative of Article 14 and 15(1) of the Constitution, the legal framework is steeped in a patriarchal gender stereotype and it is violative of the right to privacy under the Article 21 of the Constitution. They have sought judicial review of Section 9 of the HMA, Section 22 of the SpMA and Order 21, Rule 32 and 33 Of the Code of Civil Procedure.
The petitioners in this case contended that the remedy was never recognised by any of the personal laws in India and it originated in English Law, which gave the wife the status of a chattel, which is not so in India. They argued that the provision was neutral on the face of it but it was based on a conception that the wife is the property of the husband. The petitioners further relied on certain judgments of the Hon’ble Supreme Court of India in support of their privacy argument. They argued that the provision for restitution of conjugal rights under the personal laws in India are violative of the private space of the individual because such provision forced the defendant to have sexual relations and establish a home with someone contrary to their choice.
SUGGESTIONS AND CONCLUSION
Restitution of Conjugal Rights, as a matrimonial Remedy, is an unwarranted inference with the private life of the spouses involved in the matrimonial tie. A decree of restitution of conjugal rights not only undermines various Fundamental Rights of wife but also violated several of her basic human rights which have been observed even by the United Nations. The Judiciary or the Ministry of Women and Child Development should take steps in furtherance of the rights of the women and ensure that these rights are protected against the vices of the provision.
The presence of a provision for exempting marital rape from criminal prosecution further aggravates the plight of women because, if a decree is passed by the court in favour of the husband, the wife is legally obligated to follow the instructions of the court and join the matrimonial home of the husband despite her unwillingness to engage in sexual intercourse with that man. She may be subjected to marital rape by the husband and forced to carry the child in such a case which would be further traumatic and utter violation of the private space of the wife.
The post-colonial India, which is an advocate of gender equality and reforms should take steps in such direction. These remnants of the colonial law should be dismantled because the state must take note that marriage involves certain aspects of a contract and a remedy like this is a futile remedy. State action cannot force the couple to accept each other’s company. Hence, it is high time that India should follow the suit of United Kingdom, Scotland, Ireland and South Africa which abolished this barbarous provision in 1970, 1984, 1988 and 1979 respectively and do away with this colonial and draconian law.