Gautam Bhatia, in his book, The Transformative Constitution[1] talks about three concepts of privacy namely spatial privacy (applicable to 'spaces' or 'functions' within these spaces), institutional privacy (one that insulates social institutions from state interference) and decisional privacy (related to individual autonomy and bodily integrity).[2] He argued in favor of Justice P.A. Choudary's reasoning in T. Sareetha v T. Venkata Subbaiah[3] that it was decisional privacy that the Constitution was committed to and it would prevail over other notions of privacy.[4] Accordingly, Justice Choudary struck down Section 9 as unconstitutional and violative of fundamental rights.

In the landmark case of Saroj Rani v Sudarshan Kumar Chadha[5], the Supreme Court upheld \the constitutionality of Section 9 of the Hindu Marriage Act 1955[6] (hereinafter 'Section 9') that provides for restitution of conjugal rights. The Court held that Section 9 was not violative of Articles 14 and 21 of the Constitution and overruled the Andhra Pradesh High Court's judgement in T. Sareetha.

In this paper, I argue in favor of the Supreme Court's decision in Saroj Rani. I will rebut the arguments of Bhatia and highlight the inherent fallacies in the reasoning of Justice Choudary. I will demonstrate that Section 9 is not violative of Articles 14 and 21 of the Constitution of India and refute the arguments put forth by my project partner.
 

Does Section 9 Violate Fundamental Rights?

Gautam Bhatia's main contention is that T. Sareetha challenged a law that constructed a private domain where fundamental rights were not applicable.[7] One of the major arguments of Bhatia in support of Justice Choudary is that Section 9 violates the right to equality.[8] He says that this Section caused relative injustice to the wife in context of her subjugated position in marriage due to which she could not avail the benefit of this Section.[9] Justice Choudary reasoned as:
 "This remedy works in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife."[10]

The Delhi High Court, in Harvinder Kaur[11], rightfully dissented from such view. It is imperative to understand that main purpose of this Section is to ensure cohabitation between the separated couple so that they may live together in matrimonial home.[12] It serves a social purpose and provides an aid to prevent break-up of marriage.

The High Court brought attention to the fact that by the amending act 44 of 1964, 'either party' is entitled to file for decree for restitution under Section 9.[13] There is no differentiation on basis of sex under Section 9. The concept of discrimination is not imbued under the Act and all are treated as equals. Thus, the Supreme Court in Saroj Rani, affirming the view in Harvinder Kaur said that Section 9 does not violate Article 14.[14]

Bhatia also argues that Section 9 is violative of Article 21 of the Constitution and says that it takes away individual autonomy and bodily integrity of women. He rests his arguments on Justice Choudary's judgement that Section 9 imposes "sexual cohabitation between unwilling, opposite sexual partners."[15] He also goes further to term it as 'forcible marital intercourse', 'forced sex' or 'coerced sex'. Justice Choudary observes that Section 9,

"Transfer[s] the choice to have or not to have marital intercourse to the State from the concerned individual and to surrender the choice to allow or not to allow one's body to be used as a vehicle for another human being's creation to the State".[16]

I do not concur with the said reasoning. Section 9 does not propose 'forced sexual intercourse' but ensures cohabitation. Cohabitation means living together as husband and wife. Sexual relations are part of a matrimonial relationship. But to say that the only purpose of decree for restitution is to enforce sexual intercourse is fallacious.[17] We cannot say that it comprises the entire structure of matrimonial relationship and other aspects of matrimonial consortium is wholly unsubstantial or of trivial character.[18] In Halsbury's Laws of England, it is clearly said,

"cohabitation does not necessarily mean sexual intercourse, which the court cannot enforce, so that refusal of sexual intercourse by itself does not constitute refusal to cohabit with the petitioner." [19]

Bhatia himself recognizes that this Section does not intend to do as mentioned above, but then relies on the judge's reasoning of consequences of such forced decree. But mistakenly, he only views sexual intercourse as a consequence of such decree and other favourable consequences of Section 9 are not considered adequately. Justice Choudary placed over-emphasis on the word 'forced sexual intercourse'. He assumed that due to social and psychological factors, a decree for restitution of conjugal rights would lead to forced sexual intercourse as marital rape[20] is not illegal in India.

But women still have other legal recourses such as divorce under Section 13(1) (i-a)[21], judicial separation[22], Section 498A of IPC and under Protection of Women from Domestic Violence Act, 2005. However, in any case, marital rape should be criminalized while retaining Section 9, strictly for cohabitation purposes. Thus, due to the aforementioned reasons, the argument of forced sex and violation of bodily integrity is unsustainable.

Prospective Objections
The primary argument Section 9 that can be raised is that it leads to forced cohabitation and it violates individual autonomy and bodily integrity.

I respond to this by emphasizing on the words "reasonable excuse" as used in Section 9. As long as there is any reasonable excuse[23], the court will not force either spouse to live with the other. It is only when any spouse has deserted the other unreasonably, the court and state intervenes as the main purpose of this Section is to establish amity and bring them together. I have already refuted the argument of 'autonomy and integrity' above while arguing about Article 21.
 
Conclusion:
Through this paper, I have put forth my arguments against Gautam Bhatia and tried to prove that the judgement in Saroj Rani is correct. However, to ensure the purpose of Section 9, it is necessary that marital rape is criminalised. This will wipe out remaining concerns of bodily integrity and privacy. It is also important that judges interpret Section 9 correctly and carefully to justify the purpose of cohabitation.[24]

End-Notes:

1. Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (Harper Collins 2019).
2. ibid 218.
3. AIR 1983 AP 356.
4. Bhatia (n 1) 218.
5. AIR 1984 SC 1562.
6. Section 9 of The Hindu Marriage Act 1955 states: "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".
7. Bhatia (n 1)
8. The Constitution of India 1950, Article 14.
9. Bhatia (n 1) 233
10. T. Sareetha (n 3).
11. Harvinder Kaur v Harmander Singh Choudary AIR 1984 Delhi 66.
12. ibid.
13. ibid.
14. Saroj Rani (n 5).
15. T. Sareetha (n 3).
16. ibid.
17. Saloni Tuteja, 'Restitution of Conjugal Rights: Criticism Revisited' (Legal Service India) accessed 23 December 2020.
18. Harvinder Kaur (n 11).
19. ibid.
20. M. Gangadevi, 'Restitution of Conjugal Rights: Constitutional Perspective' (2003) 45 Journal of the Indian Law Institute 453.
21. The Hindu Marriage Act 1955, s 13(1) (i-a) state that: "Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnisation of the marriage, treated the petitioner with cruelty".
22. HMA 1955, s 10.
23. N.R. Radhakrishnan v N. Dhana Lakshmi AIR 1975 Mad 331; Sushil Kumar Dang v Prem Kumar Dang AIR 1976 Del 321.
24. There have been certain cases (Smt. Kailashwati v Ayodhya Prakash (1977) PLR 216) where the courts have not interpreted the provisions of Section 9 correctly, particularly in suits where the wife was employed. This had led to the wife giving up her job to live with the husband. However, at the same time, in cases such as Shanti Nigam v Ramesh Chandra Nigam (1971) ALJ 67, the court has held that a woman, employed at some other place, who has no intention of breaking up with her husband, cannot be forced to live with her husband through a decree for restitution of conjugal rights.