Section 9 of Hindu marriage act talks about the restitution of conjugal rights. It states that if two individual are legally bound as husband and wife (according to HMA) and if they are living away from each other or if a spouse refuses cohabitation, the other spouse can move the family court seeking a decree for cohabitation. This act give birth to the famous casr which is dadaji bhikaji vs. rukhmabai 1885.
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Long back, when the concept of restitution of conjugal rights faced its first legal test in 1885, 22-year-old Rukhmabai had very little except her fortitude to fight the battle. In a never before act of defiance she refused to
cohabit and solemnise her marriage with her husband Dadaji Bhikaji, that had taken place when she was just 11 years old.
On April 9, 1887, a trial began against her before the Bombay High Court on a suit for restitution of conjugal rights that was filed by her husband.
The same day, a pseudonymous letter by her her signed as ‘A Hindu Lady,
The case Dadaji Bhikaji vs Rukhmabai was fought from 1884 to 1887 in courtrooms and in newspapers, with both parties responding to each other and stating “some facts and circumstances of the case” in The Times.
It was a fight between Dadaji and Rukhmabai as much as between a colonial power that tried to manifest righteousness through legal reforms and Indians who opposed foreign intervention in Hindu culture and society. Bal Gangadhar Tilak, one of Rukhmabai’s critics, blamed her education for her refusal to live with Dadaji. The fierce nationalist opposition to the verdict ensured an appeal in the case. Then chief justice of the Bombay High Court, Justice Bailey, reversed the previous verdict that had been in Rukhmabai’s favour and ordered a fresh trial.
In the fresh trial, Judge Charles Farran ruled in favour of Dadaji and even ordered Rukhmabai to pay for his legal costs since she had opposed his suit. Though the norm for refusal to comply with such decrees of the court was attachment of property, judge Farran sought to enforce his decree by warning Rukhmabai with imprisonments of nearly six months.
Even as a public fund to support Rukhmabai’s appeal against the verdict to the Privy Council was set up, the
case to enforce judge Farran’s order came up again.
While the idea of an educated women being possibly imprisoned had captured the common imagination, Rukhmabai and her husband reached a settlement. For a sum of Rs 2,000, Dadaji agreed to not pursue the decree against Rukhmabai or her property and went on to get remarried.With the support she had garnered, Rukhmabai went to London to study medicine and became India’s first woman medical practitioner.
The latest examination, however, will be its most significant and comes at a time when the colonial laws on adultery and criminalisation of homosexuality have already been struck down for disproportionately discriminating against women and confirming to gender stereotypes.The defence Rukhmabai made 136 years ago — of female autonomy and the right to refuse — still stands