A petition has been filed in the Supreme Court stating that the court mandated conjugal rights amounted to a coercive act on the part of the state. The validity of Section 9 of the Hindu Marriage Act and other provisions have been challenged as the petitioners have contended that mostly unwilling wives are forced to cohabit with their estranged husbands. The Supreme Court will examine the fresh challenge to the provision of restitution of conjugal rights under the Hindu personal laws.

Restitution of conjugal rights allows the spouse to compel the other spouse to cohabit or face a forfeiture of property. Restitution of conjugal rights is one of the reliefs available to spouses under the Hindu Marriage Act, 1955, the Parsi Marriage and Divorce Act, 1936, the Special Marriage Act, 1954 and the Indian Divorce Act, 1869.

However, since this provision has been tested several times and as times are changing with marriage no longer being an indissoluble union and with rise of gender equality and female autonomy, we need to think whether this provision still holds much relevance today. The concept of restitution of conjugal rights faced its first legal test in the famous Rukhmabai case in 1885 in which 22-year-old Rukhmabai refused to cohabit and solemnise the marriage with her husband that had taken when she was 11 years old.

This case is important in the light of female autonomy and right to refuse. As more and more colonial laws such as adultery where women were considered to be chattel and criminalisation of homosexuality have been struck down, it's time to analyse whether restitution of conjugal rights is disproportionately discriminatory towards women and whether it takes away the element of choice and autonomy of women. This essay will analyse what restitution of conjugal rights is, the judicial opinion on this provision, the validity of this provision in other countries and whether it still stands relevant in the country today.

What is Restitution of Conjugal Rights?
Restriction of conjugal rights originates from Jewish law and it reached India through the British during colonial rule where wives were often treated as the chattel of husbands. However, this view has been overturned in Joseph Shine v UOI where the court granted female autonomy with emphasis on freedom and choice that married women possess.

According to Section 9 of the Hindu Marriage Act, 1955, if the husband or wife, has withdrawn from the company of the other spouse, the aggrieved party can file a petition to the district court for restitution of conjugal rights and the court may decree restitution of conjugal rights accordingly if it believes that there has been withdrawn from society.

An explanation has been provided in the Section which provides that there is a burden on the person who has withdrawn from society of the other person to prove that there has been a reasonable excuse to withdraw. This provision has also been Section 22 of Special Marriage Act, 1954, Section 32 of Indian Divorce Act, 1869 and Section 36 of Parsi Marriage and Divorce Act, 1936.

The decree's mode of execution has been enumerated in the Code of Civil Procedure Code, 1908 (CPC). According to Rule 32, the court may, in the execution of the same, attach the property of the respondent and within a year, the decree is not followed, the property will be sold. Out of the sale proceeds, the court may award compensation to the petitioner as it thinks fit. Rule 33 is another mode of execution where the petitioner is wife and tong the husband, the court may make a decree ordering the respondent to pay the petitioner a fixed sum of money periodically if the decree is not complied with.

The court has often stressed upon the idea of preservation of marriage as the key goal of restitution of conjugal rights by compelling the withdrawing party to cohabit with the spouse. The essential conditions to be fulfilled are that the spouse has to withdraw from the society of the other party without any reasonable excuse with intention of forsaking or abandoning the relationship and the burden of providing a reasonable excuse lies on him or her and the court has to be satisfied with the reason.

The last condition is that no legal grounds exist for the refusal of the decree. Wherein separation is brought about by exigencies of work or if husband and wife are living apart but maintaining a relationship cannot qualify as instances of withdrawal of society. However, there may be withdrawal even while the parties are residing under one roof.

Historical Landmark Case during the Colonial Era

India's first female practitioner had to fight for her right to refuse and female autonomy when she vehemently refused to solemnize her marriage to her husband whom she married when she was 11 years old. Dadaji Bhikaji vs Rukhmabai case was fought from 1884 to 1887 with in both courtrooms and newspapers and gained a lot of publicity.

Her husband filed a suit against her in the Bombay High Court to seek restitution of conjugal rights and on April 9, 1887, the trial began. Judge Robert Pinhey arrived at the opinion that the plaintiff cannot maintain his action as it was a 'cruel and barbarous thing to compel a young lady into a child marriage'. He based his decision on technicality as the petitioner's suit couldn't qualify as restitution as the couple had not cohabited after marriage and hence, it would be a misnomer.

To him, it was rather an institution of conjugal rights. This case also opened the gates for minimum age of marriage as the case recognized the Hindu woman's choice to consummate the marriage when she was an adult and not as a child. Lots of debates occurred between the conservative sections of society who alleged that the British were interfering with their customs and religion. Rukhmabai was, as many educated women were during those times, criticized for not willing to live with her husband and according to critics her refusal was due to the education she had received.

The Chief Justice of Bombay High Court, Justice Bailey had to reverse the decision and had to order a fresh trial amidst the fierce criticism as the British had promised not to interfere with the religion and culture of the natives after the Revolt of 1857 and started following a policy of non-interference. In official responses, the judge later recommended some changes in law which prohibited restitution of conjugal rights in child marriages.

In the fresh trial, Judge Charles Farran ruled in favour of the husband ordering Rukhmabai to comply with the decree otherwise she had to serve a 6 months imprisonment. However, Rukhmabai and the petitioner came to mutual agreement in which she paid ₹2,000 and her husband didn't pursue the decree against her or her property and went on to get remarried. In this way, Rukhmabai arose over the patriarchal system and went to London to study medicine, becoming India's first female practitioner.

Her case is a spectacular example of a woman exercising her right to refuse in compelling circumstances. Currently, there are so many Rukhmabais who are forced to unwillingly cohabit with their husbands who otherwise are threatened to face forfeiture of property. Rukhmabai's struggle against injustice and the oppressive patriarchal system in which young girls are forced to live with their husbands who are much older than them eroding their capacity to make decisions for themselves.

Women during the colonial period were subordinated to men and had no personality of their own. Rukhmabai's case serves as an inspiration for the overhaul of such Victorian era laws which still exist today despite the changing times.

Judicial Opinion in Earlier Cases
In the case of Saroj Rani v Sudarshan Kumar Chadha (1984), the Supreme Court upheld Section 9 of the Hindu Marriage Act, 1955 stating that this provision served a social purpose as an aid to prevent breakup of marriages. It was decided by a single judge bench presided by Justice Sabyasachi Mukherjee. However, the ruling regarding this issue was initially decided by the High Courts of Andhra Pradesh and Delhi in which different approaches were held

In 1983, in the case of T. Sareetha vs T. Venkata Subbaiah, the High Court of Andhra Pradesh struck down Section 9 of the Act declaring it null and void. It was decided by a single judge bench, P.Choudhary, who held that it breaches the right to privacy as cohabitation was an intimate matter and it was better if the couple decided rather than the state. Another reason cited was that restitution of conjugal rights could result in forced sexual cohabitation for women who would face grave consequences.

However, this decision was rescinded and a diametrically opposite view was taken by the Delhi High Court in the same year in Harmander Kaur v Harvinder Singh Choudhry, critiquing the stand taken by the Andhra Pradesh High Court. According to the Delhi High Court, emphasis should nit be given on sex rather on maintaining the relationship between the two spouses which would be 'beneficial for the children and society'.

The Delhi High Court argued that the section aimed at consortium rather than cohabitation and sexual intercourse was not the ultimate goal of marriage.[1] Hence, the Supreme Court upheld the decision of the Delhi High Court and overruled the decision of the Andhra Pradesh High Court.

Defects in Restitution of Conjugal Rights

The law has been challenged on the grounds of breach of fundamental right to privacy and coercion dismissing the woman's female autonomy and her right to refuse such cohabitation. The Andhra Pradesh High Court in the case of T. Sareetha vs T. Venkata Subbaiah has observed that such forced cohabitation would lead to the wife's deprivation over her autonomy and control over her body and it transferred the consent of having sexual intercourse from the individual to the State which seriously contravened the right to privacy.

In K.S. Puttaswamy v Union of India, the Supreme Court has held right to privacy and individuals have the right of autonomy over their body and hence, it is in consonance with the decision of the Andhra Pradesh's individualistic conception of one's privacy. Section 9 can be used as a tool to continue the insidious practice of marital rape which is unfortunately still legal in India.

Although Section 9 is gender neutral and applies to both wife and husband, women are a greater risk at facing violence and marital rape which eventually deprives them of their autonomy and their free choice. It also contributes to one's loss in well-being and perpetuates emotional and mental abuse by the hands of the other spouse.

The withdrawing spouse also needs to give a reasonable reason for withdrawing and this part is quite problematic too. Cruelty can be both mental and physical and mental cruelty is often difficult to prove in the courts. Every person is different temperamentally and such scars and abuses remain in one's mind for a long time.

Most courts have stressed on the importance of this provision in restoring stability of marriage, however, we need to realise that as times are progressing, marriages are not sacrosanct anymore. We have marriages breaking down irretrievably and yet irretrievable breakdown doesn't have a provision in the Hindu Marriage Act. Marriage should be based on the freedom of choice, affection, autonomy and mutual respect and understanding. Forceful cohabitation will wear down the marriage instead of increasing stability.

This provision has also been misused quite frequently to evade payment of alimony and divorce proceedings. This prolongs the divorce proceedings and the aggrieved spouse is deprived of payment. During judicial separation, the spouse is entitled to receive payment from the other. Hence, Section 9 is used to withhold alimony.

The emphasis on gender imbalance has been emphasised in the earlier paragraph however, as the plague of dowry deaths and abuses are extremely frequent in our country, wives who withdraw from the society of their cruel husbands end up getting no relief. In such aspects, this provision reinforces gender inequality and violate Article 14 of the Constitution which upholds equality irrespective of gender.

Conclusion
Our judiciary has given several inconsistent and shaky judgments regarding this provision. Marriage cannot be the fountainhead unless the dignity, autonomy and protection of both spouses are guaranteed. Judiciary needs to intervene and make changes to ensure that the rights of individuals are protected. Marriage cannot be above the law and family law cannot be thought of as being outside the purview of the Constitution as per Article 13 of the Constitution, laws which are violative of the Constitution are struck down.

Family law is no exception and hence, such laws should not be allowed to remain. Laws which are gender discriminatory such as establishing father as the natural guardian instead of both the parents still exist and this is unfortunate. The Judiciary also needs to realize the progressive times of our society and protect the autonomy and choice of women. Restitution of conjugal rights has been abolished in the UK, Ireland, South Africa and Australia due to criticism across several common law jurisdictions. It's high time that India abolishes this provision too.

End Notes:

1. The Hindu Marriage Act, 1955.
2. Family Law Lectures, Family Law I, 5th Edition, Prof. Kusum.
3. https://ohrh.law.ox.ac.uk/the-restitution-of-conjugal-rights-in-indian-law-violates-the-right-to-privacy/
4. https://indianexpress.com/article/opinion/columns/as-sc-looks-again-at-conjugal-rights-recalling-rukhmabai-7409834/
5. https://www.livelaw.in/columns/restitution-of-conjugal-rights-rights-or-restriction-177480
6. https://indianexpress.com/article/explained/explained-conjugal-rights-before-supreme-court-7411007/

Written By: Dhriti Bhadra