By Barkha Singh
Published On: February 19, 2022 at 12:23 IST
Introduction
“True freedom requires the rule of law and justice and a judicial system in which the rights of some are not secured by the denial of rights to others.”
-Jonathan Sacks
Conjugal Rights are rights created by virtue of an alliance between two consenting adults who decide to spend their lives together, bound by a socially and legally acceptable pact called a Marriage. In this article, we seek to deal with one specific aspect of conjugal rights: the right to the consortium that fortifies this right by allowing the spouses to move Court to enforce it.
This conjugal right can be found in all personal laws and thus applicable to all marriages irrespective of religion.
The constitutional validity of conjugal rights has been persistently questioned over the decades. The debate has been centered around how it disproportionately impacts women and how can a colonial provision continue to be held valid in the contemporary progressive world where marriage as an institution is being redefined.
Law is not objective, and a formalistic reading of law conceals the inherent injustice and chauvinism of the ones involved in law-making. Thus, a law that purports to be gender-neutral but in effect inordinately favors one gender or group in a marriage cannot be left unscrutinized.
This article explores various facets of conjugal rights, their origins, and their constitutional validity. It attempts to fathom the various debates around its pros and cons and how the legal fraternity canvassed it over the decades.
The article aims to look into the facts, implications, and underlying assumptions that more often than not stay unperceived by the oblivious society.
Conjugal Rights under various Personal laws
Conjugal rights arise out of marriage. These are a set of rights and obligations that the spouses are conceived to have in a marriage recognized by law. The discussion of this article is around one particular type of conjugal right, which is the right to cohabitation and access to each other’s society.
This right is delineated under Section 9 of Hindu Marriage Act, 1955 for Hindus, 1954, Section 32 of Indian Divorce Act, 1869 which is applied to Christians, Section 282 of Mohammedan law, Section 22 of Special Marriage Act, and Section 36 of Parsi Marriage and Divorce Act, 1936.
Section 9 of the Hindu Marriage Act, 1955 provides that when either the husband or wife has, without any reasonable excuse or legal ground, withdrawn from the society of the other, the aggrieved party has the right to apply by petition to the district court for Restitution of conjugal rights.
If the Court is satisfied with the validity of the statements expressed in the petition, it may choose to decree the restitution of conjugal rights.
Requisites to be fulfilled for a Petition of conjugal rights to be entertained:
- The marriage must be legally valid
- It needs to be established that the spouses are not cohabiting
- The withdrawal of the party in question is without any reasonable excuse or legal ground
- The Petitioner has a bona fide desire to live with the spouse
The basis on which a Petition for Restitution of conjugal rights can be rejected:
- If the Petitioner confesses to committing any marital misconduct
- If the Respondent is eligible for any matrimonial relief
- If the actions and behavior of the Petitioner have been established to be unconducive for a marital relationship
- If the spouses need to stay separately for the purpose of employment
- Cruelty on the part of husband or in-laws
- On the failure by the Petitioner to have fulfilled conjugal obligations
- Any ground of such nature on which the Respondent could have asked for the nullity of marriage, decree for Judicial Separation, or Divorce
- In the case of Islamic law, on non-payment of a quick dower by the husband
Where separation is brought by due to exigencies of work or if husband and wife are living separately but continue maintaining a relationship cannot qualify as instances of withdrawal from society. However, it may qualify as withdrawal even while the parties are residing under one roof.
The burden falls on the Petitioner to prove that the Respondent has withdrawn from the society of the petitioner. But the Respondent has to prove that there is a reasonable excuse or legal ground as to why the Respondent’s withdrawal from the spouse’s society was justifiable.
Execution of Decree
In case the Court finds that there are no reasonable grounds for the Respondent to have withdrawn from the society of the spouse, it would, after being satisfied with the intentions of the parties, grant a decree for restitution of conjugal rights. The judgment-debtor will have a period of one year to honor the decree.
The mode of execution for a decree of restitution of conjugal rights has been enumerated under Rule 32 and Rule 33 of the Civil Procedure Code, 1908.
According to Rule 32, the Court may, in the course of execution of the decree, attach the property of the Respondent, and if within a year the decree is not acted upon, the Court can sell the property. Out of the sale proceeds, the Court has the ability to award compensation to the petitioner as it deems fit.
Rule 33 comes into action in cases where the wife is the Petitioner and would involve the husband being ordered to pay a fixed sum of money periodically if the decree is not compiled. The wife can also claim maintenance under Section 25 of the Hindu Marriage Act, 1955 during this period of separation.
Conjugal Rights Vs. Judicial Separation and Divorce
If in a given case, the decree for restitution of conjugal rights is passed, it will not be a nullity, and if not challenged by appeal or other matrimonial remedies available, then it becomes final. Thus, such an order cannot be ignored, and if the judgment-debtor fails to take action upon the decree passed, it can also form a valid ground of Divorce proceedings.
Either party can seek Judicial Separation if they do not wish to cohabit but are unwilling to exercise the option of divorce. The parties can continue to live alienated without it affecting the legality of the marriage.
A judicial separation petition can also act as a defense to a petition for restitution of conjugal rights. If the concerned parties to the suit continue their separation for a period of one year or more, it qualifies as a ground for divorce
When it comes to a petition for divorce, the general consensus is that the two petitions are mutually destructive of each other as a decree for restitution of conjugal rights is an opportunity to be reunited with one’s spouse, which stands in sharp contrast to a divorce. However, the marital laws are devoid of any concrete ruling on this purpose.
The Not So Archaic Origins
Restitution of conjugal rights originated from Jewish law and reached India through the British during the oppressive colonial rule. During those centuries, the wives were treated as the chattel of husbands. The matrimonial remedy of conjugal rights was neither recognized by the Dharmashastras nor did the Islamic law make any provisions for it.
The argument concerning tradition and how the institution of marriage is understood does not stand as it was not our creation, to begin with. Hinduism regards man and woman as the two halves of the eternal being, each constituting a part, quite incomplete in itself.
In the Brihadaranyaka Upanishad, Prajapati, the Hindu primordial God, divides himself into two-man and women, the symbols of cosmic polarity deriving sustenance from the same source. Neither of the genders is considered superior to the other.
Nowhere do the Vedas say that woman is a man’s property. This is evident from the sukta of Surya’s bridal in the Rig Veda: Enter your house as the household’s mistress. May authority in speech ever be yours!’ 10.85.26).’ Watch over this house as mistress of the home. (10.85.27). ‘Here dwell ye, be not parted; enjoy full age, play and rejoice with sons and grandsons in your own house’ (10.85.42).
‘Act like a queen over your husband’s father, over your husband’s mother likewise, and his sister. Overall your husband’s brothers be queen’ (10.85.46). But she came to be proclaimed as the property of the man during specific periods of history. She continued to be treated like one within the four walls and under archaic laws that continue to exist, whether marital rape or conjugal rights.
This avowed remedy was inherited from the British colonial rule and several other laws that have been required to be struck down over the decades. It is intriguing to note that it has been expunged by Britain in 1969 and consequently by several other Commonwealth nations, whereas the Indian State has not.
Judicial Developments in Past
The concept of Conjugal rights was first introduced in India in the case of Moonshree Buzloor Ruheem vs. Shumsoonissa Begum, where action for conjugal rights was regarded as consideration for specific performance as marriage under Islamic law is a civil contract.
In pre-independence India, one case that calls for attention is Dadaji Bhikaji vs. Rukhmabai of 1885. In this case, a 22-year-old Rukhmabai refused to cohabit and solemnize the marriage with her husband that had taken place when she was a minor, 11 years old.
Judge Robert Pinhey in 1887 had reached the opinion that the husband cannot maintain his action as it would be a cruel and barbarous thing to compel a young lady into solemnizing a child marriage.
In the aftermath of the political and social turmoil going on, and the public sentiments around British interference in customs and religion after the first war of independence of 1857, on appeal, Justice Bailey reversed the decision, and in a fresh trial, Judge Charles Farran ruled in favor of the husband.
However, Rukhmabai reached a mutual agreement with her husband, arose over the patriarchal system, and went to London to study medicine, becoming India’s first female practitioner. Currently, so many Rukhmabais are forced to unwillingly cohabit with their husbands who otherwise are threatened to face forfeiture of property.
After independence, in the case of Saroj Rani v Sudarshan Kumar Chadha of 1984, the Supreme Court of India upheld Section 9 of the Hindu Marriage Act, 1955 by arguing that this provision served a social purpose as an aid to prevent the breakup of marriages and hold the society together. Leading up to this issue, the high courts of Andhra Pradesh and Delhi had ruled differently on the issue.
In 1983, a single-judge bench of the Andhra Pradesh High Court had for the first time struck down the obsolescent provision in the case of T Sareetha v T Venkatsubbhaiah and declared the provision on conjugal rights null and void.
Justice P Choudary had cited the fundamental right to privacy, among other reasons. The Court also argued against state interference in intimate matters of the citizenry. Here, Justice P Choudary had most importantly also recognized that the compelling “Sexual cohabitation” would be of grave consequences for the women.
However, around the same time, in Harvinder Kaur v Harmander Singh Chaudhry, Delhi High Court held a diametrically opposite view of the law. Over the years, this judgment has been questioned for uploading the primacy of children’s interests and state welfare in matters intimate over individual privacy and liberty.
Constitutional Validity
The law on conjugal rights is being challenged now on the main grounds that it is violative of the fundamental Right to Privacy. The pending plea in the Supreme Court by two law students argues that court-mandated restitution of conjugal rights amounts to a “Coercive action” on the part of the State, as it is violative of one’s sexual and decisional autonomy and right to privacy and dignity under Article 21 of the Constitution.
While examining a law, it should not be forgotten that law is not value-neutral. No law is objective, and under every law formulated lies a web of assumptions, prejudices, and any attempt to proselytize preconceived notions and ideologies of the dominant groups who are primarily involved in law-making. The law is required to be read in spirit rather than in letter.
Although the law on conjugal rights is ex-facie (‘on the face of it’) gender-neutral as it allows both the husband the wife to move the Court for restitution of conjugal rights. The provision disproportionately affects women. The courts should use the test of ‘Direct and inevitable consequence’ in their examination of conjugal rights.
Conjugal rights under all personal laws in place consist of two key ingredients- Cohabitation and Sexual intercourse. Through provisions like conjugal rights, he or she becomes capacitated to coercive measures in case the spouses wilfully disobey the decree of restitution.
In light of the judgments passed over the last three decades concerning the right to privacy and dignity, the various provisions on the conjugal right fail the test of time. In 2017, a 9-Judge Bench of the Supreme Court in Justice K.S. Puttaswamy vs. Union of India affirmed that the Constitution of India guarantees each individual a fundamental right to privacy.
In the above case, the Supreme Court had upheld an individual’s right to privacy and right to autonomy over their body. Hence, it is in consonance with Andhra Pradesh’s 1984 decision on an individualistic conception of one’s privacy.
Implications For Women
“Male dominance in society always means that out of public sight, in the private, ahistorical world of men with women, men are sexually dominating women.”
-Andrea Dworkin
In Joseph Shine vs. Union of India of 2019, the honorable Supreme Court had laid great emphasis on the right to privacy and bodily autonomy of married women stating that marriage does not take away a women’s sexual freedom or choice. The question remains if every individual is inherently entitled to their bodily autonomy, right to choose, and right to privacy.
How can a court mandate two adults to cohabit if one of them does not wish to do so, and can a marriage be really preserved out of the forceful consortium.
The various sections enforcing conjugal rights has been argued to be Violative of Article 14, 19, and 21 of the Constitution.
In Shakila Banu v. Gulam Mustafa, the Hon’ble High Court observed: “The concept of restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”
In a largely male-dominated society, the advantages of different laws and remedies are usually reaped by men because of economic dependence and sociological pressure, among other factors. There is an obvious quality because, in the majority of instances, the wife is put in an unfavorable situation.
Equality, in essence, implies equality of thought, actions, and self-realization. But the continuation of this remedy leads to unwanted pregnancies and violates women’s liberty, privacy, and individual autonomy.
The Supreme court’s argument in its 1984 judgment that the only objective of a decree for restitution of conjugal rights does not stand according to many. Perhaps it was not realized by the Supreme Court that the barbaric and deplorable practice of marital rape is legal in India.
The decree for restitution of conjugal rights efficiently puts a wife under the pressure of forceful sex with her husband. It simultaneously strips her of physical autonomy, dignity, and the liberty to make her own choices relating to her own life and body by submitting a wife against her will to “Forced cohabitation” and “Consortium.”
Further details on How Conjugal Rights are in Contradiction with Marital Rape.
In Kharak Singh vs. State of UP, Justice Subba Rao had rightly said that “Any definition of the right to privacy must encompass and protect the personal intimacies of the home, family, marriage, motherhood, procreation, and child-rearing.”
The argument by the State in support of conjugal rights based on its social purpose of upholding marriage as an institution cannot stand without taking into account how marriage has come to be redefined.
In the Twenty-first-century, modern theories of marriage are leaving behind the ideas of marriage being sacred and unimpeachable. They are embracing the argument that spouses should be class equals joined by private affection and do not require public sanction.
Restitution of Conjugal Rights is based on a noble cause but has lost its relevance with the evolving times and social scenarios, and it does not produce the required impact. While we talk about gender equality and the gender-neutral quality of the law, women are still at a disadvantage in Indian society, and this provision capitalizes on it.
Dowry deaths plague society and women continue to be emotionally and mentally manipulated and tortured for dowry are aplenty. When such wives, tired and broken by cruelty, leave the husband’s house, a decree of restitution of conjugal rights acts as a nose around their necks.
The Andhra Pradesh High Court, in its judgment, had quoted the landmark United States Supreme Court decision in the case of Eisenstadt vs. Baird, 405 U.S. 438(1972): “If the right of privacy means anything it is the right of the individual, married or single, to be free from unwanted governmental intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
When a decree for restitution of conjugal rights is enforced, the life pattern of the wife is more likely to be altered irretrievably. On the other hand, the husbands can remain almost as before because it is the wife who has to beget and bear the child.
Also, whether the Petitioner is the husband or wife, the Section states that the onus is on the spouse who withdrew from the others society to prove it is reasonable. Any form of abuse is hard to prove, bruises fade, sometimes scars heal, and often the abuser leaves no mark. And unequivocally, when the same cruelty becomes emotional and mental, it becomes close to impossible to prove
Leading legal scholars have argued that this Section does not pass the scrutiny of our Constitution but holds on to the baseless, illogical argument of family law falling outside the purview of the Constitution and about marriage being above all else.
The Court or the government cannot arbitrarily decide which matters of the private sphere fall within the judicial scrutiny and which do not. At the same time, the line between the public sphere open for state intervention and the private sphere, which stands on the importance of privacy of an individual, needs to be defined.
International Status
Countries ranging from Britain, Ireland, Australia to South Africa have struck down provisions relating to restitution of conjugal rights. The importance of the right to the self-sexual determination of women is increasingly being recognized as crucial to women’s rights.
In 2012, High Commissioner for Human Rights Navi Pillay stated: “Violations of women’s human rights are often linked to their sexuality and reproductive role. (…) In many countries, married women may not refuse to have sexual relations with their husbands and often have no say in whether they use contraception. (…) Ensuring that women have full autonomy over their bodies is the first crucial step towards achieving substantive equality between women and men. Personal issues—such as when, how and with whom they choose to have sex, and when, how and with whom they choose to have children—are at the heart of living a life in dignity.”
Recent studies suggest that the global cost of violence against women stands at approximately USD 1.5 trillion. India is a signatory to the Convention on the Elimination of ALL Forms of Discrimination (CEDAW), 1979, having ratified it as early as 1993. Thus, India is bound by its obligation arising from the Convention to prioritize eliminating all forms of gender-based violence against women.
In this regard, Article 15 clause 1(equality before the law) and Article 16 (measures to eliminate discrimination against women in all matters relating to marriage and family relations) of the Convention come into play. According to international conventions and obligations, the restitution of conjugal rights needs to be examined.
Conclusion
An alternate remedy to restitution of conjugal rights to protect the institution of marriage can be 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 is not inflicted on women, these methods should only be allowed in accordance with the free consent of the victim, which is to be analysed by a special team instituted for that purpose.
For centuries, women have survived under laws traditionally made by men for men. Excluding women’s voices on laws that impact their lives makes little sense. A law cannot be oblivious to its ramifications and needs to recognize how it affects various parties, individually as well as, as a whole.
About The Author
Barkha Singh is a second-year student pursuing B.A.LLB(Hons) from NALSAR University of Law, Hyderabad. She is an avid reader and has an analytical mind. She has a keen interest in corporate law and international relations.
Edited by: Tanvi Mahajan, Publisher, Law Insider
References
- Hindu women as a life partner
- Justice for All
- Conjugal rights before the Supreme Court
- Restitution of Conjugal Rights – An Anathema to Human Rights
- Restitution of Conjugal Right:
- Constitutional Morality As A Challenge.
- Constitutional Validity of Restitution of Conjugal Rights