A petition questioning a law that forces a woman to return to her husband and denies her sexual autonomy has been pending in the Supreme Court for months without a hearing.
Restitution of conjugal rights, a medieval ecclesiastical law from England codified in several statutes, including the Hindu Marriage Act and Special Marriage Act, owes its survival largely to the fact that marital rape is not recognised as crime.
The petition, titled Ojaswa Pathak versus Union of India , was filed in the Supreme Court in February 2019. The case was last heard on July 8, 2021. It was next posted for July 22, 2021. However, the Supreme Court website shows no further dates. Meanwhile, Justice Rohinton Nariman, who had led the Bench which heard the case, has retired.
The furious debate over criminalising marital rape compels a relook at how the provisions of restitution of conjugal rights, though gender-neutral, place an additional burden on women and poses a direct threat to their bodily autonomy, privacy and individual dignity.
Penalty for women
With marital rape not an offence, the provisions of restitution of conjugal rights, when aimed at a woman, takes away her bodily autonomy and forces her to stay with her husband. If a woman does not comply to return to her husband, the court could even attach her property.
Provisions of restitution of conjugal rights like Section 9 of the Hindu Marriage Act and Section 22 of the Special Marriage Act empower a husband or a wife to move the local district court, complaining that the other partner has “withdrawn” from the marriage without a “reasonable cause”. The petition gives the court the authority to order the “withdrawn” spouse to return to the matrimonial home. Order 21 Rule 32 of the Civil Procedure Code allows the court to attach the property of the “errant” spouse if he or she does not comply with its order to return.
The meaning and extent of key words in the provisions like “withdrawn” or “reasonable cause” are ambiguous. For example, if a woman stays away from her husband for her job, would it mean that she has “withdrawn” from the marriage. Besides, “reasonable cause” would differ from one person to the other.
The courts have over the years dealt with the law of ‘restitution of conjugal rights’ in a chequered manner. Judgments have swung from the idea of ‘sanctity of marriage’ to the necessity of upholding the privacy and dignity of women.
In one of the early judgments in the 1960s, the Punjab and Haryana High Court in the Tirath Kaur case, upheld restitution of conjugal rights, noting that “a wife’s first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection”.
The courts, in a series of judgments in the 1980s, have supported the law, holding that the denial of marital and sexual life to the husband by the wife by refusing to permanently return to him is an act of both mental and physical cruelty.
Even the Supreme Court, in Saroja Rani case, held that conjugal rights, ie, the “right of the husband or wife to one another’s society is inherent in the very institution of marriage”.
However, another series of judgments, especially the one by Madhya Pradesh High Court in the Vibha Shrivastava case, busts the “orthodox concept of the Hindu wife as Dharmpatni, Ardhangini, Bharya or Anugamin i”.
“This orthodox concept of wife and expectations from her to subject herself to husband's wishes has undergone a revolutionary change with education and high literacy in women and with recognition of equal rights to women in the constitution and abolition of sex distinction in all walks of life. She is a partner in marriage with equal status and equal rights with the husband,” the High Court noted.
Marriage cannot be a tyranny, the High Court had noted.
In the well-known case of actor Sareetha, the Andhra Pradesh High Court did not mince words when it said, “sexual cohabitation is an inseparable ingredient of a decree for restitution of conjugal rights”.
The High Court said a decree of restitution of conjugal rights gives a spouse not only the right of company but also the right to “marital intercourse” with the other spouse. In short, the provision “coerces, through judicial process, an unwilling party to have sex against consent and freewill with the decree-holder”.
In the Sareetha case, the High Court made it a point to note that “ancient Hindu law treated the duty of the Hindu wife to abide by her husband only as an imperfect obligation incapable of being enforced against her will . It left the choice entirely to the free will of the wife”.
The fight against marital rape and restitution of conjugal rights has gained a new lease of life with the Supreme Court’s nine-judge Bench upholding privacy as a “constitutionally protected right” which gives a person complete authority to decide one’s matters of personal intimacies, sanctity of family life, the home, sexual orientation, etc.
The Supreme Court, in its recent Joseph Shine judgment, concluded that the State cannot exercise authority in a person’s private affairs. “The right to privacy is an inalienable right, closely associated with the innate dignity of an individual, and the right to autonomy and self-determination to take decisions,” the court said.
The court has also held that any interference by the State in a person’s choice of partners causes “serious chilling effect on the exercise of the freedoms guaranteed by the Constitution”.
The time is ripe for the top court to pick up where it left off.