Introduction: The Legal Anomaly in Modern India

Imagine the strange situation where you are forced to live together with someone who completely has broken your trust, who you no longer like, and do not respect. It is a new low to see such situations not only reflected in history but also to the present day as the Supreme Court of India has recognized them in Section 9 of the Hindu Marriage Act, 1955. To start with, this clause's main aim was to ensure that there was peace and happiness in marriages.

Nevertheless, it infringed on the autonomy and privacy of men and women, families, and the dignity of the people in a favorable marriage. At a time that is all about people's rights and gender equality, why does a law that reflects an old tradition still be the governing rule in modern India? The gravity of the contradiction that is part of India's system of law is plain to see. Section 9 of the Hindu Marriage Act 1955 is intended to promote marital harmony, this section mandates restitution of conjugal rights, compelling spouses to cohabit, even against their will. This outdated law imposes on numerous Indian women a contemporary challenge a compromise of personal freedom and bodily autonomy disguised as a marital obligation.[1]

A number of laws have been passed in India with the intention of making the people feel safe and powerful, just like the Domestic Violence Act and the Sexual Harassment of Women at Workplace Act. Still, the Parliament is yet to abolish Section 9 of the Hindu Marriage Act, a measure that is crucial and relates to the personal rights. This contradiction raises a main question: why a state that fights for gender parity want to have a law that denies the people the right to make decisions?

This article examines the constitutionality of the restitution of conjugal rights, evaluating its detrimental effects on individual freedoms and gender justice. By juxtaposing India's legal stance with international legal frameworks and championing progressive reform, this paper aspires to enrich the dialogue on dismantling patriarchal norms embedded within our legal system.

Historical Roots: Colonial Legacy and Patriarchal Foundations

As India continues to decolonize its legal framework, such as with the introduction of new penal laws, it raises the question of why certain provisions, like Section 9 of the Hindu Marriage Act, remain constitutional. Despite being a developing country that has made significant strides in both infrastructure and intellectual development, we have not yet addressed the unconstitutionality of such provisions.

The origins of the restitution of conjugal rights can be traced back to medieval England, during which wives were legally regarded as the property of their husbands. Under the framework of feudal laws, marriage was not perceived as an equal partnership but rather as a binding agreement that placed the wife under her husband's authority. The legal system permitted husbands to compel their wives to return to the marital residence, thereby reinforcing male dominance within the institution of marriage.

When British colonizers introduced this concept to India, it was first acknowledged in Moonshee Buzloor Ruheem v. Shumsoonissa Begum (1867)[2]. In this case, a woman's refusal to reside with her husband led to a legal confrontation, which laid the groundwork for the codification of Restitution of Conjugal Rights (RCR) within Indian jurisprudence. This importation of colonial law failed to consider the cultural subtleties of Indian society, where traditional texts such as the Dharmashastras and Islamic laws emphasized mutual respect over enforced cohabitation.

Transitioning to independent India: the formulation of matrimonial laws reignited discussions on the relevance of RCR. During parliamentary discourse, J.B. Kripalani vehemently opposed its inclusion, denouncing it as "physically undesirable, morally unacceptable, and aesthetically repugnant."[3] In a similar vein, Dr. M. Ruthnaswamy cautioned that such legislation would infringe upon personal dignity and freedom; nonetheless, RCR endured the legislative process, embedding patriarchal principles within a contemporary legal framework[4].

This paradox continues to be unresolved in the present day. While global progress has been made, exemplified by the United Kingdom's abolition of RCR in 1970, India still contends with its colonial legacy. The ongoing relevance of this provision prompts critical inquiries: Can a modern, progressive society maintain a law that mandates individuals to engage in unwanted cohabitation, often at the expense of their dignity and freedom?
 

Judicial Perspectives: Diverging Views on Section 9

This has been always in question whether provisions like RCR are constitutional or not This question was first addressed by Andhra Pradesh high court in the case of T. Sareetha v. T. Venkatasubbaiah[5] T. Sareetha was of the opinion that Section 9, which gives the court the power to force a spouse to cohabit with the other, infringes on personal autonomy and privacy. She argued that making a person live with a spouse who forcibly comes against his/her will is an intervention of personal  liberty and dignity.

The petitioner talked about Section 9 being a provision that is a direct violation of a person's fundamental rights as stipulated in Article 21 (involving the right to personal liberty) and Article 14 (involving the right to equality) under the Indian Constitution. Abolishing the freedom to live where someone hates it because a life companion is not in agreement with this liberty can be an obstacle to personal liberty.

It was proposed that the clause might be used maliciously either for causing marital disharmony or by making individuals initiate relationships where they may not be safe or happy, particularly in cases of domestic violence or marital rape.

The Andhra Pradesh High Court, in its ruling, held that Section 9 of the Hindu Marriage Act was unconstitutional.

However, Delhi high court held a different opinion in the case of Harvinder Kaur v.HarmendeSingh[6], it opined that section 9 is absolutely constitutionally valid. The court clarified that the purpose of the remedy of restitution of conjugal rights is not to enforce sexual relations between spouses. Instead, the goal is to restore cohabitation and foster a friendly relationship between the spouses to preserve the marriage.

All debates were finally settled in 1984 with the Supreme Court's judgment in Saroj Rani v. Sudarshan Kumar Chadha[7]. In this case, the Supreme Court endorsed the Delhi High Court's opinion and overturned the earlier judgment of the Andhra Pradesh High Court.

The Court stated that the provision in question "serves a social purpose as an aid to the prevention of break-up of marriage" and acts as a remedy.

The Right to Privacy: A Fundamental Threat

The right to privacy represents an essential element of personal autonomy, allowing individuals to have control over their bodies and personal spaces. For women, this right is especially important as it encompasses the liberty to select who can touch their bodies or enter their living spaces. This autonomy is fundamental to the dignity and self-determination promised by the Constitution.

Compelling a woman to live with someone against her will, as required by laws such as restitution of conjugal rights, directly violates her privacy and bodily autonomy. Such pressure, as it takes away a woman's right to decide what is best for her life and body. It is crucial that these judgments remain entirely hers, and they reflect the cardinal values of individual independence and respect for our private space.

This life-altering decision should lie solely within the purview of the individual, without external obligation or compulsion; provisions like restitution of conjugal rights violate this autonomy by dragging a woman into an involuntary cohabitation and the possibility of forced childbirth and motherhood, stripping her of her rights and dignity.[8] Such actions not only endanger her freedom; they undermine her basic ability to make decisions about her own body and reproductive health.

A major breakthrough on the discussion of restitution of conjugal rights came in the case of Ojaswa Pathak v. Union of India[9]. In the instant case, the petitioners probed the problems posed by such provisions when it comes to constitutional rights, especially concerning sexual and reproductive autonomy, health, and equality.

They contested the constitutionality of Section 9 of the Hindu Marriage Act, Section 22 of the Special Marriage Act, 1954, and Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908, advocating for a socio-legal interpretation of these provisions.

The argument posited was that while the legal provisions permit both men and women to seek restitution of conjugal rights equally, they exert a disproportionate impact on women due to the prevailing societal structure in India, which predominantly favors men. This inequitable impact places women in potentially detrimental and unjust situations, especially if they are forced to reside with their husbands' families against their wishes.

The Supreme Court, in the case of Shakila Banu v. Gulam Mustafa[10], observed that these provisions originated from a period when women were regarded as property and quasi-slavery was socially sanctioned. Such antiquated feudal laws have no relevance in a contemporary constitutional framework that advocates for personal liberties and equality for all individuals. Consequently, these provisions contravene Articles 14 and 15(1) of the Constitution, which ensure equality and safeguard individual rights.
 
Articulating this, the landmark case of K.S. Puttaswamy v. Union of India (2017) [11]laid down that the right to privacy pertained to the autonomy of an individual relating to his/her body. Hence, to trouble, this autonomy is to directly attack this very right, which is enshrined in Article 21 of the Constitution and thus guarantees the right to live a life of dignity. Hence, it can be said further that the remedy of restitution of conjugal rights violates personal liberty and fundamental rights which is an intrusion of individual freedom.

Impact on Gender Justice: Women as Silent Victims

While Section 9 of the Hindu Marriage Act is neutral regarding gender, it disproportionately affects women due to societal expectations. In Indian culture, women are frequently expected to reside in their husbands' households, which might not always be a secure or nurturing space. Additionally, the absence of laws concerning marital rape worsens this situation.

Being pressured by their families to marry, with little regard for her choices or safety. When they seek the law's help, Section 9 leaves them with little option but to stay with their husbands, putting them in a situation that offers little option and immense emotional trauma. Moreover, men can also run into trouble in these situations. An example: A wife would pressure her husband to desert his parents or mistreat his family members, putting him in a very difficult situation, too.

However, the consequences for women are generally more severe. Men may exploit Section 9 to postpone divorce and avoid financial obligations such as alimony or maintenance fees.

Throughout the patriarchal system, Indian women have been lowly seen and practically owned by men who express their psychological satisfaction in the practice this orphan of women manifests itself in laws like the Hindu Marriage Act under Section 9 and the Special Marriage Act under Section 22 which are supposed to maintain social peace but let men have control over their wives.

In 2021, 137,000 cases and in 2022 accounting for a staggering 31.4% of crimes against women of cruelty by husbands or their relatives were reported, as per the National Crime Records Bureau (NCRB)[12], and this portrays perfectly the widespread abuse of housewives and the situation of domestic abuse in India. Moreover, the related violence of dowry remains quite critical as near about 6,500 dowry deaths are reported annually.
 
If a woman is forced to return to her matrimonial home against her will, then the law is inarguably setting greater importance to the marriage institution over the very existence of women's well-being and freedom. This surely not only goes against their right to freedom and individualism but also fosters the gender stereotype that the man is a lord over the woman.

Thus, repealing such provisions is crucial to dismantling patriarchal power structures and fostering an environment where women can live with dignity, free from fear and coercion.

Conclusion
The restitution of conjugal rights, as outlined in Section 9 of the Hindu Marriage Act and Section 22 of the Special Marriage Act, represents an outdated legal framework that infringes upon the fundamental rights of individuals, particularly women, within the institution of marriage bonds. These provisions, relics of colonial-era laws, run completely counter to modern respect for personal autonomy, gender equality, and human dignity. With their existing treaties, such laws form an enduring presence in India, revealing a stark contrast within the country's laws, where marriage is given utmost importance over individual rights, despite many milestones achieved in the modern era.

The negative implications of these provisions are not just theoretical; they are a cruel reality for many a woman trapped in an abusive or oppressive relationship. The chilling statistics on domestic violence and dowry-related deaths remind us, however, of the contribution that the law makes to the social harm of mindset privileging the integrity of marriage or intimacy over respect and freedom of the individual.

Globally,  countries, including the UK, South Africa, Canada, and Australia, have reformed their laws to protect personal rights and make marriage a consensual and respectful partnership. .Abolition of the Restitution of Conjugal Rights would be an act of liberating women from the suffocating clutch of patriarchal control and bringing the law in line with the values of the progressive, modern Indian society. We must embrace a legal framework that honestly respects the autonomy and freedom of everyone and ensures that marriage is, as it should be, a relationship of equals rather than a tool of oppression. By doing so, India can chart a course toward a future in which every person is able to live with dignity and free from fear.

End Notes:

• Shreya Atrey, Wedlock or Wed-Lockup? A Case for Abolishing Restitution of Conjugal Rights in India, 35 J. Fam. L. 1 (2021), available at Wedlock or Wed-Lockup? A Case for Abolishing Restitution of Conjugal Rights in India | Oxford Academic
• Moonshee Buzloor Ruheem v. Shumsoonissa Begum, (1867) 11 M.I.A. 551 (India)
• J.B. Kripalani's remarks during debates on the Hindu Marriage and Divorce Bill, reprinted in Parliamentary Debates, Lok Sabha (1955), available at 01_IX_05-05-1955_p15_p60_PII.pdf
• Dr. M. Ruthnaswamy's statement on restitution of conjugal rights, cited in Lok Sabha Debates on Special Marriage Bill and Hindu Marriage Bill (1955)
• T. Sareetha v. T. Venkatasubbaiah, AIR 1983 AP 356, 1983 SCC OnLine AP 24
• Harvinder Kaur v. Harmander Singh, AIR 1984 Del 66, 1983 SCC OnLine Del 190
• Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562, (1984) 4 SCC 90, 1984 SCC OnLine SC 203
• Khushi Gupta & Vishakha Shakya, Restitution of Conjugal Rights: A Peril to Fundamental Rights in India, JURIST (Jan. 2023), available at Restitution of Conjugal Rights: A Peril to Fundamental Rights in India - JURIST
• Ojaswa Pathak v. Union of India, W.P. (C) No. 250 of 2019
• Shakila Banu v. Gulam Mustafa, (2003) 7 SCC 204
• K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, 2017 SCC OnLine SC 996
• National Crime Records Bureau, Crime in India 2022, Ministry of Home Affairs, Government of India (2022), available at Crime in India 2022