Restitution of conjugal rights by isha jain @lexcliq

The Supreme Court (SC) is going to hear a fresh challenge to the provision allowing restitution (recovery) of conjugal rights under Hindu personal laws (Hindu Marriage act 1955).

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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.

why this law should be challenge in the court of law?

The law is being challenged now on the main grounds that it violates the fundamental right to privacy.

  • The right to privacy is protected as an part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
  • The restitution of conjugal right amount to coercive in nature as it use force propaganda and legal threat to persuade the spouse.
  • violates one’s sexual and decisional autonomy, and right to dignity. and  how can a court mandate two adults to cohabit if one of them does not wish to do so.

The law will give birth to many other domestic violence against women . Missuse of the provision will lead towards the dowry death, marital rape and domestic abusing and many other aspects. This provision might be nuetral on the basis of gender but it will affect the female spouse in a wrong manner.

Another pertinent matter to take into consideration is the misuse of this provision as a shield against divorce proceedings and alimony payments.Often an aggrieved spouse files for divorce from their place of residence and their spouse retaliates by filing for a decree of restitution in their place of residence which will result in delay or no action in divorce may further lead to beach to person’s rights.

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 capitalises on it.

Dowry deaths are a plague on society and women being emotionally and mentally manipulated and tortured for dowry are aplenty.

When these wives, tired and broken by cruelty, leave the husband’s house, a decree of restitution of conjugal rights is a noose around their necks.

It’s time for the Indian judiciary and society to shift to more progressive views starting with the progressive theory of marriage. Marriage is not built upon the ceremonies but upon the autonomy and freedom of two individuals who agree to share them with each other.

colonial origin

The concept of restitution of conjugal rights is codified in Hindu personal law now, but has colonial origins.The British law treated wives as their husband’s personal possession hence they were not allowed to leave their husbands. Then also in 1970, the U.K repealed the law on restitution of conjugal rights.

the concept of restitution of conjugal right were neither the part of Indian culture nor it serves the exact motive of freedom or betterment of society. It surely have benefits like, betterment for cohabitation between the spouse, chances of settlement in marriage but it surely have lot of disadvantage and may also create cruelty if misused.

 

 

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