In March 2019, the Honourable Supreme Court of India admitted a writ petition[1] (Ojaswa Pathak v. Union of India) challenging the constitutionality of the remedy of restitution of conjugal rights present under multiple family laws including Section 9 of Hindu Marriage Act, 1955 (hereafter the Act). The question of law i.e. constitutionality of the remedy of conjugal rights still remains a contentious issue and, is far from reaching a conclusive end because of the competing interest of protecting individual human rights on one hand and state’s interest in protecting the marriage on the other hand (See the Scoping Paper, para 1.2).[2]
This post analyses the remedy of restitution of conjugal rights from a human rights perspective given the relevance of international human rights legal doctrine to domestic legal structures. In India, Fundamental Rights under Part III of the Constitution are categorised as basic human rights guaranteed to citizens and accordingly are labelled as inalienable. Despite this being the case, they have been often violated under the garb of implementing personal laws which includes Section 9 of the Act, Section 22 of the Special Marriage Act, 1954 and so on. Surviving multiple challenges before the Indian courts, the remedy under discussion has also contributed significantly to violations, such as…undermining the dignity of women, curtailing the right to equality, right to privacy and marital rights.[3] The authors in this post stand inimical to the approach to the restitution of conjugal rights espoused by the Indian Judiciary and argue for the eradication of this provision, similar to other developed countries.
Rights Associated with Remedy of Restitution
Over several decades, multiple agreements have been passed by the international community in order to protect and defend women’s rights; in particular, the Convention on the Elimination of All Forms of Discrimination against Women[4] (CEDAW), which builds upon the Universal Declaration of Human Rights[5] (UDHR), and the Declaration on the Elimination of Discrimination against Women[6] (DEDAW). Under Article 16 of CEDAW and UDHR, and Article 6 of DEDAW, women are entitled to equal rights as men in a marital relationship. Resultantly, these articles call for rectifications in personal laws if they are in conflict with the basic human rights of women. Notably, in UK, in the case of Re Pinochet,[7] the House of Lords applied UK legislation incorporating the obligations’ under the International Convention against Torture. Similarly, at various instances in India, such as in Chairman Railway Board v. Chandrima Das,[8] the court has asserted the application of UDHR into the domestic law. In essence, international conventions have a considerable impact on the development of domestic law.
However, under Section 9 of the Hindu Marriage Act, when either of the spouses deserts the other spouse without reasonable excuse, the aggrieved party is entitled to a decree of restitution of conjugal rights.[9] By virtue of this provision, women are disproportionately impacted by particular consequences arising out of the punitive immunity granted to men in cases of marital rape in India arises out of Section 376 of the Indian Penal Code which provides that Non-consensual sexual intercourse with a wife above the age of fifteen years is not an offence in India. Consequently, compelling a woman to cohabit with her husband can have aggravated consequences for her due to the likelihood of a non-consensual and forced sexual intercourse by the husband.[10] The constitutionality of the remedy is discussed in the next section.
Constitutionality of the restitution of conjugal rights in India
Over the years, the courts have tried to uphold the validity of Section 9 of the Act. However, this has been done without paying heed to the multiple practical and patriarchal problems in India. The foremost case to test the constitutionality of Section 9 was T. Sareetha v. T. Vankat Subbaiah[11](T. Sareetha) wherein the High Court of Andhra Pradesh, held that a decree granting restitution of conjugal rights by the lower courts not only grants relief to the other spouse of the company but also affords him/her the right to have conjugal intercourse. In T. Sareetha, it was also highlighted that: “The remedy offends the inviolability of the body and mind and invades the marital privacy and domestic intimacies of such person”.
In many cases, due to notions of patriarchy etched in the familial culture, it is only the women who bear the brunt of this remedy. Although inadvertently, the remedy would essentially amount to forcing the unwilling spouse to engage in the act of unwanted sexual intercourse, thereby violating Article 14 of the Constitution of India. In this case, Section 9 of the Act was held to be constitutionally invalid. Post this decision, the High Court of Delhi in Harminder Kaur v. Harmandar Singh Choudhary[12]and the Supreme Court of India in Saroj Rani v. Sudarshan Kumar Chadha,[13] had overruled T. Sareetha. With regards to the constitutionality of Section 9, it held that this remedy aims at cohabitation and consortium, and not merely at sexual intercourse. The remedy, therefore, aims at protecting the institution of marriage in disregard to the principles enshrined under Articles 14, 19, and 21 of the Indian Constitution. It was held that marriage as an institution shall be kept outside the scope of such provisions.
Reading human rights into the institution of marriage
The reasoning of the honourable Supreme Court after T. Sareetha does not align with accepted principles of human rights for certain reasons. First, the principle of Constitution Suprema Lex proves that personal laws are subjected to the Constitution and the same has been held in Re Amina,[14] and Shayara Bano,[15] where personal laws were struck down due to constitutional infirmities.
Second, this remedy was inherited from the British Colony along with several other laws. It is interesting to note that it has been obliterated by the UK and several other Commonwealth nations whereas the Indian state has not. The primary reason for its abolition in the UK is postulated in the UK’s Law Commission Report,[16] where it is observed that restitution can be claimed by other “more appropriate methods” and in case these other methods fail to bring the desired outcome, it is unlikely that a forceful co-habitation would succeed.
Third, in 2018, the Supreme Court in Joseph Shine v. Union of India,[17] held that the state should refrain itself from intruding into the private sphere of husband and wife, therefore protecting women’s human dignity which does not get submerged merely by the reason of marriage. Moreover, privacy now is recognised as a part of human dignity,[18] which is inherent in Article 21 of the Indian Constitution.[19] Accordingly, these human rights should not be subjected to the archaic decree of restitution.
Conclusion
There is an urgent need to protect the human rights of women arising out of a marriage and the unconstitutionality of Section 9 of the Act can help in building momentum to challenge patriarchy in India. Article 14 of the Constitution of India grants equal protection to citizens regardless of their gender and the same shall be held to form an inherent part of marriage. Marriage is indeed a fabric which essentially holds the society together and it’s in the public policy of state to uphold the status of marriage wherever is possible, however, coercing spouses into continuing the marriage should not be the way forward.
Drawing an analogy from cases of divorce and how the state protects its interest in marriages, Section 13(B)(2) of the Act provides that before the parties are granted mutual divorce, they compulsorily have to undergo a ‘cooling period’ of minimum 6 months, where parties are granted an opportunity to rethink for a possibility to co-habit. In relation with the same, the authors believe that one of the ways to protect the institution of marriage in cases of Section 9 is that the spouses should be allowed to undergo mediation sessions where the mediator shall make every effort to protect their marriage. However, to ensure that gender based violence should not be inflicted on the women, these methods shall only be allowed in accordance with the ‘free consent’ of the victim which is to be analysed by the special team constituted for that purpose.[20] In this way, the inherent dignity attached to human beings can be protected. Thus, the authors hope that the pending writ petition before the Supreme Court of India would take international human rights perspective into account and declare the remedy of restitution of conjugal rights to be unconstitutional in nature.
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Author I– Gaurav Chaliya is a Penultimate year student at National Law University, Jodhpur. He takes a keen interest in Human Rights Law and International Law. Also, he is a regular author in this field of law. He can be reached at chaliyagaurav@gmail.com.
Author II– Jayesh Kumar Singh is a Penultimate year student at National Law University, Jodhpur. He is keenly interested in spreading awareness regarding basic legal rights and works as the Deputy Convenor of Legal Aid & Awareness Committee (NLUJ). Additionally, Jayesh also works as the Associate Editor of Indian Journal of Arbitration Law. He can be reached at jayeshkumar.singh@nlujodhpur.ac.in.
[1] Ojaswa Pathak v. Union of India W.P.(C) No. 250/2019 PIL-W.
[2] Law Commission, Getting Married: A Scoping Paper (December 2015) <https://www.lawcom.gov.uk/app/uploads/2015/12/Getting_Married_scoping_paper.pdf>.
[3] Anik Bhaduri, ‘The Restitution of Conjugal Rights in Indian Law violates the Right to Privacy’ (OxHRH Blog, July 30 2018) <https://ohrh.law.ox.ac.uk/the-restitution-of-conjugal-rights-in-indian-law-violates-the-right-to-privacy/> accessed June 28, 2020.
[4] G.A. Res. 34/180, Convention on the Elimination of All Forms of Discrimination against Women (Dec. 18, 1979).
[5] G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).
[6] G.A. Res. 48/104, Declaration on the Elimination of Discrimination against Women (Dec. 20, 1993).
[7] Regina v. Bartle and the Commissioner of Police for the Metropolis and Others ex Parte Pinochet, House of Lords (March 24, 1999) <https://publications.parliament.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm>.
[8] Chairman Railway Board v. Chandrima Das (2000) 2 SCC 465.
[9] Hindu Marriage Act, 1955 § 9.
[10] Raghav Pandey & Neelabh Bist, ‘Compelling wife to ‘cohabit’ with husband violates fundamental rights; it’s time SC reviewed Section 9 of Hindu Marriage Act’ (Firstpost, March 06, 2019 <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> accessed July 02, 2020.
[11] T. Sareetha v. T. Vankat Subbaiah AIR 1983 AP 356.
[12] Harminder Kaur v. Harmandar Singh Choudhary AIR 1984 Delhi 66.
[13] Saroj Rani v. Sudarshan Kumar Chadha 1984 AIR 1562.
[14] Re, Smt. Amina v. Unknown AIR 1992 Bom 214.
[15] Shayara Bano v. Union of India & Ors. (2017) 9 SCC 1.
[16] The Law Commission, Proposal for the abolition of the matrimonial remedy of Restitution of Conjugal Rights, Law Com. No. 23 (July 24, 1969).
[17] Joseph Shine v Union of India 2018 SC 1676.
[18] K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.
[19] Navtej Singh Johar v. Union of India (2018) 1 SCC 791.
[20] CEDAW, General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, CEDAW/C/GC/35 (July, 2017) <https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/CEDAW_C_GC_35_8267_E.pdf>.