(The authors, Hammad Siddiqui and Sarim Uddin are third year law student at Faculty of Law, Jamia Millia Islamia, New Delhi.)
Restitution of conjugal rights is a remedy given to either party to the marriage against the other party who has withdrawn from his/her society without reasonable cause. The court may grant a decree compelling the other party to join the petitioner’s society. S. 9 of the Hindu Marriage Act, 1955 incorporates this remedy for Hindus and Order 21 Rule 32 of Civil Procedure Code, 1908 allows the attachment of property to enforce a decree for the restitution of conjugal rights. If the parties have not resumed cohabitation for a year or more, it becomes a ground for divorce under S. 13(1A)(ii) of the HMA.
Even though this remedy is available to both parties, it is often exercised against the wife. This is unsurprising because, in our country, the prevalent norm is that the wife moves to the husband or his parents’ house after marriage. The remedy has its origin in the ancient notion of marriage based on the proprietary rights of the husband over the wife. If she attempted to run away, she was forced to go back and live with her husband. Originally available in the Jewish Law, the remedy was adopted by the English Common Law, and from there it made its way into India.[1] English Law has abrogated this remedy in 1976 but India continues it. It has drawn severe criticism with many calling it anachronistic, regressive, and tyrannical. S. 9 of the HMA and O 21 R 32 of CPC stand challenged in the Supreme Court by Ojaswa Pathak, an undergraduate law student.
Judicial view over the years
One of the earliest cases of restitution of conjugal rights came before the Bombay High Court in 1885. In Dadaji Bhikaji v. Rukhmabai, the petitioner wanted to enforce a decree of restitution against Rukhmabi after 11 years of marriage even though they had never cohabited. Justice Pinhey refused to grant the decree citing that it would ‘be barbarous, cruel and revolting’ to compel a woman to cohabit with a man she dislikes. He also regretted the introduction of this remedy into India which[VC1] had no foundation in Hindu Law. The decision generated a furore and the decision was swiftly reversed by a division bench of the Bombay High Court. Since Dadaji Bhikaji, the remedy continued to thrive and was eventually incorporated into the HMA. The decree was regressively administered coercing women into leaving their profession and joining husband’s residence. The act was justified by the notion of a wife’s duty to submit and obey her husband and remain under his roof and protection. This continued until a fleeting ray of hope shone when the constitutional validity of S.9 was challenged in T Sareetha v. T. Venkata Subbaih. The Andhra Pradesh High Court struck down the provision as unconstitutional being arbitrary and violative of Article 14. The court observed that a decree of restitution denies the woman her choice by making her body a vehicle for the procreation of another being. The decision came way ahead of its time. Its significance was not realized then but eventually, scholars started endorsing it and some even labelled it ‘transformative’. Unfortunately, these endorsements came a little late.
In the following year, the Delhi High Court dissented with this judgment in Harvinder Kaur. Rohatgi J. holding S.9 constitutional, made the observation that the introduction of constitutional law in the home is like introducing a bull in a china shop. He observed that the object of a restitution decree is to bring about cohabitation so that the estranged parties can live together in amity. T. Sareetha was finally overruled by the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha upholding the validity of S.9 with reasoning almost similar to that of Rohatgi J’s. The Apex Court held that the right of the husband or the wife to another’s society is inherent in the very institution of marriage itself. The Bombay High Court had adopted a similar approach declaring perfunctorily that there are sufficient safeguards in S. 9 to prevent it from being a tyranny.
Constitutional validity
T. Sareetha drew its contents from Gobind v. State of M.P. in which the right to privacy as a fundamental right was tacitly implied. Justice P. Choudary referring to Gobind noted that any plausible definition of the right to privacy is bound to take the human body as its most basic reference. To understand this remark, a deeper discussion of the conception of privacy is required. According to Gautam Bhatia[2], privacy may be spatial, institutional, or decisional. The first one refers to activities normally carried out within a physical space, often ‘home’. The second centers on the institutions such as marriage and family. Privacy in this sense prohibits state interference in these institutions. The third protects the individual autonomy to decide how her body should be used. The next task would be to enquire as to which of these conceptions of privacy our Constitution envisages. For that, we have to identify the fundamental unit of the society. Some constitutions take ‘family’ as a unit. For example, Article 41(1) of the Irish Constitution recognizes family as the natural primary and fundamental unit group of society. On the other hand, our Constitution is individual-centric. Except for a few fundamental rights, all other right in Part III is conferred on an individual, not a family, home, or household. To quote Dr. Ambedkar, our Constitution has ‘adopted individual as its unit’. Returning to Choudary J.’s observation, the conception of privacy he upheld was decisional and it is submitted that this notion of privacy which gives an individual autonomy over her actions and body is true to the spirit of our constitution. The right to privacy belongs to a person as an individual and is not lost by marital association. Compelling a woman to live with an undesired person is denuding her of the very intimate right of control over her body. Now that the right to privacy has been expressly recognised, S.9 of the HMA clearly violates this fundamental right.
S. 9, as held in T. Sareetha, also violates Article 14 of the Constitution. The Article protects equality before the law and provides equal protection of the law. Even though this remedy is available to either spouse, it is exclusively used by the husband and a suit for restitution by the wife is rare. Bare equality of treatment regardless of the inequality of realities is neither justice nor homage to the constitutional principle. The remedy preaches formal equality at the cost of a great injustice to women who cannot plan their future, choose a profession, or even protect their bodies. This is antithetical to the constitutional ideals and cannot withstand the tests under Article 14.
What S.9 does is that it transfers the right to have marital intercourse and beget children from individuals to the State. It brings about state-enforced sexual cohabitation and fetches the law disrepute. It also does not serve any social purpose as state coercion of this nature can neither prolong nor preserve the voluntary union of husband and wife in matrimony.
Marriage, a sacrament
Hindu marriage is considered a sacrament, customary rites being essential for its validity. Courts do not fail to remind us time and again that a Hindu marriage cannot be dissolved so easily. The remedy is often justified on this ground and it serves a social purpose by preventing the break-up of a marriage. Hindu philosophy always emphasized the meeting of the minds as a marriage determinant, and where this element was missing the marriage was said to have lost its sanctity. By introducing an element of coercion in matrimonial life, the remedy is only diluting the sanctimonious nature of marriage. Forcing unwilling partners to cohabit so that their strained relations can be improved is contradictory in itself. It is necessary that all efforts should be made to bring together the estranged parties, but compulsion is not the way. There are other sufficient safeguards available that should be employed.
S. 23 of the HMA casts an obligation on the court to “make every effort towards reconciliation” between the spouses. The court has full discretion to adjourn the case and refer the matter to a mediator. Similarly, S. 9 of the Family Courts Act, 1984 makes it a ‘duty’ of all Family Courts to endeavor towards ‘settlement’ of disputes. The court has to “assist and persuade” parties into a settlement. Order 32A Rule 3 of CPC makes the courts duty-bound to put efforts for settlement in cases of family disputes. These means of reconciliation should be adopted and encouraged to save marriages rather than a restitution decree. The remedy should be aimed at the amicable resolution of disputes through discussions and negotiations.
Conclusion
The remedy of restitution of conjugal rights has no root in Hindu Law and it is a colonial baggage we still carry. The remedy does not serve any social purpose. It violates fundamental rights and even becomes cruel and regressive at times. Since marital rape has not been criminalized in India, the remedy puts women in a precarious position. S. 9 of the HMA has been challenged before the Supreme Court along with O 21 R 32 of CPC. One can only hope that the Apex Court will do away with these provisions and protect an individual’s right to privacy, dignity, and liberty.
[1] Dr. Paras Diwan, Modern Hindu Law 183 (Allahabad Law Agency, Faridabad, 20th edn., 2009).
[2] Gautam Bhatia, The Transformative Constitution 221 (HarperCollins, Noida).
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