Three Judge Bench To Hear Plea Challenging Restitution Of Conjugal Rights Under Hindu Marriage Act .

The Supreme Court on Tuesday referred to a three-judge bench 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.

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly”, read the impugned provision.

It may be noted that under section 13(1-A) of the *HMA, if there has been no restitution of conjugal rights between the parties for a period of one year or more after the decree is passed, it qualifies as a valid ground for divorce. Either party may invoke it for the dissolution of the marriage. “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly”, read the impugned provision.

It may be noted that under section 13(1-A) of the Act, if there has been no restitution of conjugal rights between the parties for a period of one year or more after the decree is passed, it qualifies as a valid ground for divorce. Either party may invoke it for the dissolution of the marriage. In October last year, a woman, an engineer in a multi-national IT major, had also mounted a challenge to the court-mandated restitution of conjugal rights, contenting that such a “coercive act” on the part of the state violates her sexual and decisional autonomy, her right to privacy and her dignity, all of which come within the purview of her right to life and personal liberty under Article 21. It was her case that compelling her to return to her husband against her wish was tantamount to marital rape.

On that occasion, a bench of Justices U. U. Lalit and M. M. Shantanagoudar had refrained from entertaining the petition purely because the court regarded it as premature at that juncture when only a petition for the restitution of conjugal rights had been moved by her husband. By showing that she was facing mental and physical harassment at the hands of her husband, the “reasonable excuse” prerequisite of section 9 would be satisfied.

 

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