The provisions dealing with restitution of conjugal rights in effect treat women as ‘chattel’, the petitioners argue. The Supreme Court on Friday sought the response of centre to a plea challenging the power conferred by the Hindu Marriage Act on courts to direct the restitution of conjugal rights of an estranged couple. The petitioners also challenged the identical provision in section 22 of the Special Marriage Act and Rules 32 and 33 of Order XXI of the CPC on the execution of the decree for restitution of conjugal rights.
The petition contends that the court-mandated restitution of conjugal rights amounted to a “coercive act” on the part of the state which violates one’s sexual and decisional autonomy, right to privacy and dignity, all of which come within the purview of right to life and personal liberty under Article 21. A three-judge bench comprising Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna issued notice to the Centre on the petition which said that these laws treat women as “chattel” and are violative of fundamental rights including the right to privacy.The legal framework is “facially neutral” and places a “disproportionate burden on women”, the plea said, adding that it is “based on feudal English law which regarded a woman as ‘chattel’ of his husband”.
“The provisions for restitution of conjugal rights are facially neutral in as much as they allow both the husband and the wife to move court. However, in effect, they are deeply discriminatory towards women. The direct and inevitable effect of the provision has to be seen in light of the deeply unequal familial power structures that prevail within Indian society,” said the petition.
The petitions have been filed by Ojaswa Pathak and Mayank Gupta, students of Gujarat National Law University at Gandhinagar. “Courts in India have understood ‘Conjugal rights’ to have two key ingredients: cohabitation and sexual intercourse.Under the legal scheme in India, a spouse is entitled to a decree directing his other spouse to cohabit and take part in sexual intercourse. He or she is also entitled to coercive measures in the form of attachment of property in case the spouses wilfully disobeys the decree of restitution,” the plea said. On March 5, a two judges bench had referred the petition to a three judges’ bench.
The petition said: “The remedy of restitution of conjugal rights was not recognized by any of the personal law systems of India. The same has its origins in feudal English Law, which at that time considered a wife to be the chattel of the husband. The United Kingdom itself has abolished the remedy of restitution of conjugal rights in 1970.” It is steeped in a patriarchal gender stereotype and is violative of Article 15(1) (prohibition of discrimination on the ground of gender etc) of the Constitution, the plea said.The provisions were also violative of the rights to privacy, individual autonomy and dignity of individuals guaranteed under Article 21 (protection of life and personal liberty) of the Constitution, it said.
Asserting that the right to cohabit was an intimate personal choice, the plea said that the provision requiring a person to cohabit with another against their will are violative of the Right to Privacy of an individual. The plea said that the validity of a law has to be tested according to the changing times. It had also sought reconsideration of the 1984 apex court verdict in Saroj Rani v Sudarshan Kumar Chadha AIR 1984 SC 1562 by which it had set aside the Andhra Pradesh High Court’s decision quashing section 9 of the Hindu Marriage Act. “In India conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself”, the SC had held in Saroj Rani .