Critical Analysis Of The Constitutionality Of Restitution Of Conjugal Rights In India
According to Black's Law Dictionary, the term 'Restitution' is defined as an act
of restoration of anything to its rightful owner.[1] The dictionary defines
'Conjugal Rights' as the right that husband and wife have to each other's
society, comfort, and affection.[2] It further defines 'Restitution of Conjugal
Rights' as:
"In English ecclesiastical law. A species of matrimonial cause or suit which is brought whenever either a husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason; in which case the ecclesiastical jurisdiction will compel them to come together again, if either be weak enough to desire it, contrary to the inclination of the other."[3]
Through this definition, one can infer that a decree for Restitution of Conjugal Rights (RoCR) is a remedy that seeks to restore marital rights when one party to the marriage has withdrawn from the society of the other without any reasonable justification. In such a case, the aggrieved party shall file a petition for RoCR, and when the Court is satisfied with the truth of the matter, it can grant such a decree where there is no legal ground to deny granting this decree.[4] If this decree is wilfully disobeyed, the party will be imprisoned, or their property shall be attached under Order 21, Rule 32 of the Civil Procedure Code, 1908.
The issue with granting such a decree is that the spouse can legally be forced to stay with their partners, violating their Fundamental Rights guaranteed under Articles 14, 19 and 21. It is also found to put women back in their abusive matrimonial homes; marital rape not being illegal in India only adds to this conundrum. Furthermore, modern times view family and marriage through an evolved sense and not as a sacrament to be preserved.
Thus, There is a need to analyse the requirement of such a legal remedy and its constitutional validity in this day and age. This paper seeks to address whether the decree of RoCR is unconstitutional. If so, it looks at alternative remedies to substitute it.
Historical Background
The RoCR is a colonially inherited concept used in the United Kingdom's ecclesiastical courts. It originated from Victorian patriarchal ideas, which assumed the wife to be her husband's property.[5] The fact that this decree has been abolished in the UK by the Matrimonial Proceedings and Property Act of 1970 makes us question the need for the same in India.
The Restitution of Conjugal Rights was first introduced to India by the Privy Council in 1866 through the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum[6]. Section 22 of the Special Marriage Act of 1954, Section 9 of the Hindu Marriage Act of 1955 (HMA), Section 32 of the Indian Divorce Act of 1869, Section 36 of the Parsi Marriage and Divorce Act of 1936 and the uncodified Muslim Law through the case of Abdul Kadir v. Salima[7], have adopted the idea of RoCR into Indian personal laws.
For the first time, the constitutional validity of RoCR was questioned in the case of T. Sareetha v. T. Venkatasubbaiah[8]. The Hon'ble Andhra Pradesh High Court decided in this case that the RoCR compromised bodily and sexual autonomy by forceful cohabitation, thereby violating the Right to Life with Dignity under Article 21 of the Indian Constitution, as well as the Right to Privacy.
The Court also believed that Section 9 of the HMA was hostile towards women and, thus, violated the Right to Equality under Article 14. Accordingly, this provision was deemed unconstitutional, and the Court stated that sexual cohabitation is an intimate decision of the husband or the wife. The state was not to interfere with the same.[9]
In the case of Harvender Kaur v. Harmander Singh Choudhry[10], the Hon'ble Delhi High Court was of a different opinion. The Court derived that the provision intended to preserve the marital bond and its sanctity. It also worked as a ground for divorce. Thus, it held that Section 9 of the HMA was constitutional and did not violate Articles 14 and 21.
Further, the Hon'ble Supreme Court of India agreed with the Hon'ble Delhi High Court in the Saroj Rani v. Sudarshan Kumar Chadha[11] case, wherein it held that RoCR serves a social purpose to prevent the break-up of marriage and acts as a remedy. It upheld the provision as constitutionally valid.[12] Many other judgements have also agreed with this opinion. This is the current legal stance toward RoCR.
Questioning Constitutionality
Although the Apex Court's decision is the current position of law, many other judgements have shown that the RoCR might not be the most suitable decree to preserve a marriage.
In the case of Itwari v. Asghari[13], a Muslim husband filed a petition for the RoCR against his first wife. The Court held that it could not compel the wife to live with her husband as he had married another woman. According to the Court, this amounted to cruelty by the husband to the wife; therefore, her refusal to live with him was justified.
Under Section 13(1A)(ii) of the HMA, the RoCR decree can be grounds for divorce if it has not been complied with for one year[14]. Such a provision has often been misused, like in the case of Malkiat Singh v. Shinderpal Kaur[15], where the petitioner deliberately did not obey the decree to obtain a decree of divorce. There have also been cases in which husbands have filed a petition for the RoCR solely as a counter to their wife's application for maintenance under Section 125 of the Code of Criminal Procedure[16]. The case of Veena Handa v. Avinash Handa[17] shows a similar scenario where the wife is put at a financial disadvantage.
Further, even if the words of the statute seem gender-neutral, in a patriarchal society, married women are adversely affected by such a decree being passed. Marital Rape has not been recognised as an offence in India, which worsens their situation. It can thus become a barrier to women's Fundamental Rights, violating the Right to Equality before the Law, guaranteed under Article 14 of the Constitution of India. The patriarchal conceptions that women are subordinate to their husbands no longer prevail. Moreover, such patriarchal norms, even if existing, must not hinder the rights of women. A similar opinion was upheld in the case of Shakti Vahini v. Union of India[18].
In the case of Kailash Wati v. Ayodhia Parkash[19], the Court held that a working woman who enters into a marriage agrees to live with her husband and that only the husband can choose the marital home. However, women are no longer confined to domestic social roles in this modern era. They are educated and go out to work; sometimes, they may live away from their husbands for employment.
Shanti Nigam v. Ramesh Chandra Nigam upheld that women cannot be confined to the home and must be able to work if they wish. This shall not amount to desertion as there is a reasonable justification for her moving out of the marital home. This is a Fundamental Right guaranteed under Articles 19(1)(a) and 19(1)(g), which are the Right to Freedom of Speech and Expression and the Right to practice any profession, or to carry on any occupation, trade or business, respectively.
In the case of T. Sareetha v. T. Venkatasubbaiah[20], the Court rightfully identified the necessity of women's bodily autonomy in the domestic sphere since Conjugal Rights very much include sexual rights between the married parties. When such acts are not consensual, they violate the Right to Life with Dignity under Article 21, which guarantees the quality of life and not mere animal existence. It also hinders the Right to Freedom of Expression under Article 19. It is also important to note that Marital Rape has not yet been criminalised in India, so the husband can act according to his whims and fantasies within the domestic sphere, which is the sad reality.
Furthermore, privacy is a precondition to the domestic domain. In the landmark judgement of K.S. Puttaswamy v. Union of India[21], Justice Nariman explicitly stated that the Right to Privacy includes the Right to move freely and autonomy over fundamental personal choices.[22] Justice Chandrachud expressed that the privacy and dignity of women in the domestic sphere must be taken seriously.[23] This right has been violated through restrictions on working and loss of bodily and sexual autonomy. Further, Kharak Singh v. State of Uttar Pradesh[24] held that the Right to Privacy includes the protection of intimacy.[25]
Other scenarios show that women are not comfortable returning to their matrimonial homes due to the abuse they face there. The case of Sukhram Bhagwan Mali v. Mishri Bai Sukhram Mali[26] shows how the Court forced a woman to return to her husband's home against her will, where she was ill-treated by her husband as well as her father-in-law.
The case of Atma Ram vs Narbada Devi[27] exhibits how even men are victims of this decree. In this case, the Court passed an order forcing the husband to cohabit with his wife against his will.
These cases manifest the violation of the Right to Choose under Article 21 of the Indian Constitution by the decree of RoCR.
A writ petition questing the constitutionality of all the provisions providing the remedy of RoCR (Ojaswa Pathak v. Union of India, W.P. (C) No. 250 of 2019) is pending before the Hon'ble Supreme Court of India. This petition also questions this legal remedy due to its gross violation of the fundamental rights guaranteed under the Constitution of India.
Thus, a comprehensive study of the existing literature and precedents has helped the author understand the Restitution of Conjugal Rights, its evolution and irrelevance in the current day and age. Furthermore, the author finds this legal remedy ultra vires to the Indian Constitution as it violates the Fundamental Rights under Articles 14, 19 and 21. Thus, it violates the 'Basic Structure Doctrine' formulated in the case of Kesavananda Bharati v. State of Kerala[28].
The author further finds that alternative remedies like Marriage Counselling by a competent third party, Arbitration for dispute resolution and criminalising Marital Rape would help address the problems that the decree of RoCR seeks to redress. The Judiciary stepping into the personal lives and making it a public matter seems highly unjust. Such alternatives reduce the burden on the Court, and speedy justice can be delivered.
CONCLUSION
The Restitution of Conjugal Rights came up when the wife was seen as subordinate to her husband. Contemporarily, it is a legal remedy to preserve the marital bond. But desertion, in the first place, happens only when the parties to marriage do not want to cohabit with each other. If the marital situation is so bad that the parties do not wish to remain in the marriage anymore, the parties must be given such an opportunity rather than the Court forcefully making them cohabit together. In this day and age, marriage is no longer seen as a sacrament to be preserved; therefore, this decree's relevance has also reduced with the changing modern times.
With Marital Rape not yet a crime in India, women are forced to go home through RoCR to face domestic violence, torture or sexual abuse. This is also coupled with the disruption of life, denial of employment, etc.[29]
In the case of Bai Jiva v. Narsing Lalbhai[30], the Hon'ble Bombay High Court held that a wife couldn't be forced to live with her husband against her will. There is a significant need to uphold this judgement as the RoCR further violates the Articles of the Constitution of India. All the provisions that envisage the RoCR as a remedy must thus be held unconstitutional.
Alternatively, reconciliation remedies such as Counselling and Arbitration can be employed to preserve a marriage rather than a forceful decree passed by the Court. The chances of success are also higher in this case, rather than through court intervention, as this is a personal law matter pertaining to the private lives of the married parties.
End-Notes:
"In English ecclesiastical law. A species of matrimonial cause or suit which is brought whenever either a husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason; in which case the ecclesiastical jurisdiction will compel them to come together again, if either be weak enough to desire it, contrary to the inclination of the other."[3]
Through this definition, one can infer that a decree for Restitution of Conjugal Rights (RoCR) is a remedy that seeks to restore marital rights when one party to the marriage has withdrawn from the society of the other without any reasonable justification. In such a case, the aggrieved party shall file a petition for RoCR, and when the Court is satisfied with the truth of the matter, it can grant such a decree where there is no legal ground to deny granting this decree.[4] If this decree is wilfully disobeyed, the party will be imprisoned, or their property shall be attached under Order 21, Rule 32 of the Civil Procedure Code, 1908.
The issue with granting such a decree is that the spouse can legally be forced to stay with their partners, violating their Fundamental Rights guaranteed under Articles 14, 19 and 21. It is also found to put women back in their abusive matrimonial homes; marital rape not being illegal in India only adds to this conundrum. Furthermore, modern times view family and marriage through an evolved sense and not as a sacrament to be preserved.
Thus, There is a need to analyse the requirement of such a legal remedy and its constitutional validity in this day and age. This paper seeks to address whether the decree of RoCR is unconstitutional. If so, it looks at alternative remedies to substitute it.
Historical Background
The RoCR is a colonially inherited concept used in the United Kingdom's ecclesiastical courts. It originated from Victorian patriarchal ideas, which assumed the wife to be her husband's property.[5] The fact that this decree has been abolished in the UK by the Matrimonial Proceedings and Property Act of 1970 makes us question the need for the same in India.
The Restitution of Conjugal Rights was first introduced to India by the Privy Council in 1866 through the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum[6]. Section 22 of the Special Marriage Act of 1954, Section 9 of the Hindu Marriage Act of 1955 (HMA), Section 32 of the Indian Divorce Act of 1869, Section 36 of the Parsi Marriage and Divorce Act of 1936 and the uncodified Muslim Law through the case of Abdul Kadir v. Salima[7], have adopted the idea of RoCR into Indian personal laws.
For the first time, the constitutional validity of RoCR was questioned in the case of T. Sareetha v. T. Venkatasubbaiah[8]. The Hon'ble Andhra Pradesh High Court decided in this case that the RoCR compromised bodily and sexual autonomy by forceful cohabitation, thereby violating the Right to Life with Dignity under Article 21 of the Indian Constitution, as well as the Right to Privacy.
The Court also believed that Section 9 of the HMA was hostile towards women and, thus, violated the Right to Equality under Article 14. Accordingly, this provision was deemed unconstitutional, and the Court stated that sexual cohabitation is an intimate decision of the husband or the wife. The state was not to interfere with the same.[9]
In the case of Harvender Kaur v. Harmander Singh Choudhry[10], the Hon'ble Delhi High Court was of a different opinion. The Court derived that the provision intended to preserve the marital bond and its sanctity. It also worked as a ground for divorce. Thus, it held that Section 9 of the HMA was constitutional and did not violate Articles 14 and 21.
Further, the Hon'ble Supreme Court of India agreed with the Hon'ble Delhi High Court in the Saroj Rani v. Sudarshan Kumar Chadha[11] case, wherein it held that RoCR serves a social purpose to prevent the break-up of marriage and acts as a remedy. It upheld the provision as constitutionally valid.[12] Many other judgements have also agreed with this opinion. This is the current legal stance toward RoCR.
Questioning Constitutionality
Although the Apex Court's decision is the current position of law, many other judgements have shown that the RoCR might not be the most suitable decree to preserve a marriage.
In the case of Itwari v. Asghari[13], a Muslim husband filed a petition for the RoCR against his first wife. The Court held that it could not compel the wife to live with her husband as he had married another woman. According to the Court, this amounted to cruelty by the husband to the wife; therefore, her refusal to live with him was justified.
Under Section 13(1A)(ii) of the HMA, the RoCR decree can be grounds for divorce if it has not been complied with for one year[14]. Such a provision has often been misused, like in the case of Malkiat Singh v. Shinderpal Kaur[15], where the petitioner deliberately did not obey the decree to obtain a decree of divorce. There have also been cases in which husbands have filed a petition for the RoCR solely as a counter to their wife's application for maintenance under Section 125 of the Code of Criminal Procedure[16]. The case of Veena Handa v. Avinash Handa[17] shows a similar scenario where the wife is put at a financial disadvantage.
Further, even if the words of the statute seem gender-neutral, in a patriarchal society, married women are adversely affected by such a decree being passed. Marital Rape has not been recognised as an offence in India, which worsens their situation. It can thus become a barrier to women's Fundamental Rights, violating the Right to Equality before the Law, guaranteed under Article 14 of the Constitution of India. The patriarchal conceptions that women are subordinate to their husbands no longer prevail. Moreover, such patriarchal norms, even if existing, must not hinder the rights of women. A similar opinion was upheld in the case of Shakti Vahini v. Union of India[18].
In the case of Kailash Wati v. Ayodhia Parkash[19], the Court held that a working woman who enters into a marriage agrees to live with her husband and that only the husband can choose the marital home. However, women are no longer confined to domestic social roles in this modern era. They are educated and go out to work; sometimes, they may live away from their husbands for employment.
Shanti Nigam v. Ramesh Chandra Nigam upheld that women cannot be confined to the home and must be able to work if they wish. This shall not amount to desertion as there is a reasonable justification for her moving out of the marital home. This is a Fundamental Right guaranteed under Articles 19(1)(a) and 19(1)(g), which are the Right to Freedom of Speech and Expression and the Right to practice any profession, or to carry on any occupation, trade or business, respectively.
In the case of T. Sareetha v. T. Venkatasubbaiah[20], the Court rightfully identified the necessity of women's bodily autonomy in the domestic sphere since Conjugal Rights very much include sexual rights between the married parties. When such acts are not consensual, they violate the Right to Life with Dignity under Article 21, which guarantees the quality of life and not mere animal existence. It also hinders the Right to Freedom of Expression under Article 19. It is also important to note that Marital Rape has not yet been criminalised in India, so the husband can act according to his whims and fantasies within the domestic sphere, which is the sad reality.
Furthermore, privacy is a precondition to the domestic domain. In the landmark judgement of K.S. Puttaswamy v. Union of India[21], Justice Nariman explicitly stated that the Right to Privacy includes the Right to move freely and autonomy over fundamental personal choices.[22] Justice Chandrachud expressed that the privacy and dignity of women in the domestic sphere must be taken seriously.[23] This right has been violated through restrictions on working and loss of bodily and sexual autonomy. Further, Kharak Singh v. State of Uttar Pradesh[24] held that the Right to Privacy includes the protection of intimacy.[25]
Other scenarios show that women are not comfortable returning to their matrimonial homes due to the abuse they face there. The case of Sukhram Bhagwan Mali v. Mishri Bai Sukhram Mali[26] shows how the Court forced a woman to return to her husband's home against her will, where she was ill-treated by her husband as well as her father-in-law.
The case of Atma Ram vs Narbada Devi[27] exhibits how even men are victims of this decree. In this case, the Court passed an order forcing the husband to cohabit with his wife against his will.
These cases manifest the violation of the Right to Choose under Article 21 of the Indian Constitution by the decree of RoCR.
A writ petition questing the constitutionality of all the provisions providing the remedy of RoCR (Ojaswa Pathak v. Union of India, W.P. (C) No. 250 of 2019) is pending before the Hon'ble Supreme Court of India. This petition also questions this legal remedy due to its gross violation of the fundamental rights guaranteed under the Constitution of India.
Thus, a comprehensive study of the existing literature and precedents has helped the author understand the Restitution of Conjugal Rights, its evolution and irrelevance in the current day and age. Furthermore, the author finds this legal remedy ultra vires to the Indian Constitution as it violates the Fundamental Rights under Articles 14, 19 and 21. Thus, it violates the 'Basic Structure Doctrine' formulated in the case of Kesavananda Bharati v. State of Kerala[28].
The author further finds that alternative remedies like Marriage Counselling by a competent third party, Arbitration for dispute resolution and criminalising Marital Rape would help address the problems that the decree of RoCR seeks to redress. The Judiciary stepping into the personal lives and making it a public matter seems highly unjust. Such alternatives reduce the burden on the Court, and speedy justice can be delivered.
CONCLUSION
The Restitution of Conjugal Rights came up when the wife was seen as subordinate to her husband. Contemporarily, it is a legal remedy to preserve the marital bond. But desertion, in the first place, happens only when the parties to marriage do not want to cohabit with each other. If the marital situation is so bad that the parties do not wish to remain in the marriage anymore, the parties must be given such an opportunity rather than the Court forcefully making them cohabit together. In this day and age, marriage is no longer seen as a sacrament to be preserved; therefore, this decree's relevance has also reduced with the changing modern times.
With Marital Rape not yet a crime in India, women are forced to go home through RoCR to face domestic violence, torture or sexual abuse. This is also coupled with the disruption of life, denial of employment, etc.[29]
In the case of Bai Jiva v. Narsing Lalbhai[30], the Hon'ble Bombay High Court held that a wife couldn't be forced to live with her husband against her will. There is a significant need to uphold this judgement as the RoCR further violates the Articles of the Constitution of India. All the provisions that envisage the RoCR as a remedy must thus be held unconstitutional.
Alternatively, reconciliation remedies such as Counselling and Arbitration can be employed to preserve a marriage rather than a forceful decree passed by the Court. The chances of success are also higher in this case, rather than through court intervention, as this is a personal law matter pertaining to the private lives of the married parties.
End-Notes:
- Restitution Blacks-Law dictionary 1553–1553
- Conjugal Rights Blacks-Law dictionary 450-450
- Restitution of Conjugal Rights Blacks-Law dictionary 1553–1553
- Deepnainee Kaushal, The Restitution of Conjugal Rights: An Analysis from Privacy Conundrum, 4 International Journal of Law Management & Humanities , 5302–5312 (2021)
- Restitution of conjugal rights: An unconstitutional remedy that needs to be struck down Legal Service India - Law, Lawyers and Legal Resources, https://www.legalserviceindia.com/legal/article-9023-restitution-of-conjugal-rights-an-unconstitutional-remedy-that-needs-to-be-struck-down.html (last visited Sep 28, 2022)
- Moonshee Buzloor Ruheem v. Shumsoonissa Begum, MANU/PR/0018/1867
- Abdul Kadir v. Salima, 1886 SCC OnLine All 3
- T. Sareetha v. T. Venkata Subbaiah, 1983 SCC OnLine AP 90
- Limitations Of Restitution Of Conjugal Rights Manupatra Articles, https://articles.manupatra.com/article-details/LIMITATIONS-OF-RESTITUTION-OF-CONJUGAL-RIGHTS (last visited Sep 28, 2022)
- Harvender Kaur v. Harmander Singh Choudhry, 1983 SCC OnLine Del 322
- Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90
- Supra note 10.
- Itwari v. Asghari, 1959 SCC OnLine All 150
- Hindu Marriage Act, 1955, No. 25 of 1995
- Malkiat Singh v. Shinderpal Kaur, 2003 SCC OnLine P&H 395
- Code of Criminal Procedure, 1973, No. 2 of 1974
- Veena Handa v. Avinash Handa, 1983 SCC OnLine Del 223
- Shakti Vahini v. Union of India, (2018) 7 SCC 192
- Kailash Vati v. Ayodhia Parkash, 1976 SCC OnLine P&H 208
- Supra note 8.
- K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1
- Deepnainee Kaushal, The Restitution of Conjugal Rights: An Analysis from Privacy Conundrum, 4 International Journal of Law Management & Humanities , 5302–5312 (2021)
- Ibid.
- Kharak Singh v. State of U.P., (1964) 1 SCR 332
- Amrita Atul Deshmukh , "Constitutional Validity and Ethicalness of Restitution of Conjugal Rights in India," 4 Pen Acclaims (2018)
- Sukhram Bhagwan Mali v. Mishri Bai Sukhram Mali, 1978 SCC OnLine MP 77
- Atma Ram v. Narbada Devi, 1979 SCC OnLine Raj 67
- Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
- Is still there is a need for restitution of conjugal right? analysis of the judgment of t.sareetha Legal Service India - Law, Lawyers and Legal Resources, https://www.legalserviceindia.com/legal/article-9168-is-still-there-is-a-need-for-restitution-of-conjugal-right-analysis-of-the-judgment-of-t-sareetha.html (last visited Sep 28, 2022)
- Bai Jivi v. Narsingh Lalbhai, 1926 SCC OnLine Bom 30
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