The debate over the constitutionality of Restitution of Conjugal Rights (RCR) highlights the State's intervention into the "private sphere" of family and marriage. The State defends this intervention as a means to protect the institution of marriage, rather than focusing on individual rights. This issue underscores the tension between decisional privacy, which prioritizes individual rights, and spatial and institutional conceptions of privacy, which protect activities within the "private sphere" (including social institutions like marriage) from State interference, even when individual rights are violated.

The Supreme Court's endorsement of the latter approach seems to contradict the post-Puttaswamy jurisprudence, a point extensively analyzed by scholars. Therefore, I will not delve into that further. This discussion is especially relevant with the Ojaswa Pathak petition challenging RCR's constitutionality currently pending before the Supreme Court.

The ongoing petition to declare Restitution of Conjugal Rights (RCR) unconstitutional provides the Court with an opportunity to conceptualize conjugal rights anew, and by extension, marriage. In short the critique of RCR in a constitutional challenge court case should not only be because it discriminates against women and therefore infringes upon their rights to equality and dignity, but also on how it perpetrates such discrimination. This provides the Court an opportunity to shift from an approach that prioritizes individual rights over the sanctity of marriage to one that fosters a democratized understanding of conjugal rights and marriage.

T.Sareetha: The Assertion Of Conjugal Rights

In the T. Sareetha case, the Andhra Pradesh High Court ruled that a decree under Section 9 effectively shifts the decision of engaging in sexual intercourse from the individual to the State, violating the decisional privacy of women and rendering it unconstitutional. This establishes that the domain of marriage is not exempt from State intervention when individual rights are at risk. While the intent of the Court in T. Sareetha is commendable, the premise that conjugal rights imply two notions, one being 'the right to marital intercourse,' is itself problematic. The interpretation of Section 9 as limiting the right to cohabitation to 'sexual cohabitation' is not aligned with the approach taken by courts in England, where this remedy originated.

In India, marriage is construed not only to create a legitimate expectation of sexual intercourse but also to enforce this expectation. This interpretation diminishes the importance of mutual consent, which is particularly troubling in light of the marital rape exception. It reduces consent to a one-sided obligation imposed on the wife, reflecting the inherent gender dynamics within a marriage. This unequal burden is further exacerbated by courts, which have ruled that providing sex is a "duty" of the wife, and refusal to do so constitutes "mental cruelty."

Even if the right to sexual intercourse is considered a part of marriage (which it should not be), the Court could still declare the provision unconstitutional based on the infringement of decisional privacy alone. An RCR decree would force the respondent to cohabit in a space against their will, effectively giving the deserted party custody over the respondent. The enforcement of this decree often involves property attachment or, in case of non-compliance, imprisonment.

Given the power dynamics, a valid connection can be established between cohabitation and compelled intercourse, even without including the right to marital intercourse. This violation of privacy and personal liberty should be sufficient to strike down the provision, rather than interpreting conjugal rights in a way that undermines the importance of the wife's consent and supports outdated provisions like the marital rape exception or denial of sex as grounds for divorce.

Subsequent cases, such as Harvinder Kaur v. Harmander Singh and Saroj Rani v. Sudarshan Kumar, upheld the constitutionality of RCR by differing in their interpretations of what 'cohabitation' within marriage entails. However, these interpretations of conjugal rights did not significantly deviate from the reasoning in T. Sareetha. The courts merely framed their decisions in language that does not overtly appear discriminatory, while failing to address the inherent institutional discrimination within marriage.

Harvinder And Saroj Rani: Balancing Individual Rights With The Social Objective Of Preserving Marriage

In Harvinder, cohabitation was defined as "living together as husband and wife," without implying a "decree in the marriage bed." Sexual intercourse was regarded as one aspect of marriage rather than its highest good. However, the Delhi High Court noted that refusal to have sexual intercourse could be evidence of the consortium ending. Procreation was deemed essential to marriage, with marital sex viewed as a "biological necessity." This interpretation conflicts with the recognition of women's reproductive rights under Article 21 and effectively treats RCR as a remedy that enforces marital sex.

It could be argued that the Court recognized consent as essential to marriage by stating that an RCR decree does not enforce sexual relations. However, the judgment overlooked how inherent power dynamics within marriage affect consent, particularly for women. For instance, while the Court acknowledged "the changing ideals of society," it assessed the constitutionality based on the "Hindu eyes of 1955" in relation to Section 9 of the Hindu Marriage Act, 1955.

The view of companionship in marriage as where "a man and his wife are one person" prioritizes preserving the marriage over the rights of the individuals within it. There is no constitutional basis for the idea of "one person (or entity)" due to marriage. Unlike countries like Italy and South Africa, which explicitly grant constitutional recognition to the family, the Indian Constitution does not recognize the "family" or "married couple" as a rights-bearing entity. In Saroj Rani, the Supreme Court also relied on spatial and institutional conceptions of privacy, emphasizing the 'social purpose' of protecting marriage as an institution over decisional privacy, which lacks constitutional support.

An Alternative Approach
To uphold the constitutional commitment to the fundamental rights of equality, dignity, and the sanctity attributed to marriage, marriage should be construed in a way that ensures these rights are safeguarded within the institution of marriage, rather than being seen as superior to its sanctity. Structural changes in interpreting marriage can also help in moving away from its current heteronormative framework. Such a transformative interpretation of marriage is bolstered by the observation made in Navtej Singh Johar v. UOI that the Constitution envisions a transformation in the order of relations not only between the state and individuals but also among individuals themselves.

A transformative interpretation of marriage would initiate by scrutinizing the influences that shape marriage, including societal constructs like patriarchy. Within marriage, patriarchy perpetuates an unequal gendered division of labor, leading to economic dependence and power imbalances. This gendered division persists through societal pressures and expectations. Upon examining the institutionalized discrimination inherent in marriage, it would then argue that social constructs like patriarchy must be interpreted in alignment with fundamental rights.

Courts must tread cautiously, acknowledging the differences between spouses while ensuring that these differences do not perpetuate discrimination or rely on gender stereotypes. For instance, consider the earlier challenges to the constitutionality of Section 497 of the Indian Penal Code, which held only men accountable for adultery. The Supreme Court upheld the provision, citing its exemption of women from criminal liability and the State's authority to enact such 'special provisions' under Article 15(3) of the Constitution. However, it failed to consider how the provision was rooted in a gender stereotype that portrays women as lacking the sexual agency to initiate or engage in adultery.

This underscores the necessity of judicial intervention even within marriage when the rights of either spouse are violated. To advance the rights of spouses within marriage, it is crucial to identify and address the discrimination stemming from inherent power imbalances. Analyzing RCR through such a transformative lens is likely to promote constitutional values like equality in jurisprudence related to marital issues.

References:

• https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00004_195525_1517807318992§ionId=38575§ionno=9&orderno=9
• https://www.scobserver.in/cases/ojaswa-pathak-union-of-india-challenge-to-restitution-of-conjugal-rights-case-background/
• https://indiankanoon.org/doc/1987982/
• https://indiankanoon.org/doc/191703/
• https://indiankanoon.org/doc/1382895/
• https://indiankanoon.org/doc/168671544/

Also Read:

• Conjugal Rights How to be Restored
• Restitution Of Conjugal Rights