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Restitution Of Conjugal Rights: An Unconstitutional Remedy That Needs To Be Struck Down

Family Law in India is not based on a uniform civil code but is divided on the basis of the religion that one follows. Keeping in mind the diversity of the traditions amongst the plethora of different religious communities across India, family law relating to marriage, divorce, custody, inheritance etc., have mostly been taken from religious scriptures and common practices.

 However, some of the family laws have also been colonially inherited, one of them being the remedy of Restitution of Conjugal Rights. However, while this remedy remains to be widely used in India it has been long abolished not in the United Kingdom. It also stands abolished in Ireland, Australia, South Africa and many provinces of Canada.

This paper seeks to analyse why it is important to strike it down as unconstitutional in India as well. In doing so it first, analyses the reasons for its discontinuation in its colonially inherited source – the United Kingdom. Second, emphasises the change in the nature of Hindu marriage which is not 'sacramental' anymore, and thus, the concept of a couple going through a separation must not be perceived as a taboo.

Third, deals with the concept of this remedy in Muslim Law, and argues how despite its contractual nature, the remedy has the potential to disregard the rights of Muslim women just like it does for Hindu women in a patriarchal society. Fourth, analyses the case laws over the years to understand the development in the status of women. Fifth, briefly summarizes the previous cases challenging the constitutionality of this remedy.

Lastly, it argues how the remedy of restitution of conjugal rights violate the fundamental rights of women. Moreover, coupled with the fact that marital rape is not a crime in India, this gender-neutral remedy causes a lot of damage to married women in a patriarchal society, and thus, goes against India's constitutional ethos and must be struck down.

Introduction
According to Black's Law Dictionary, 'restitution is defined as an "act of restoration of anything to its rightful owner, the act of making good or giving an equivalent for any loss, damage, or injury, and an indemnification"[1] while 'conjugal rights' are defined as "matrimonial rights, the right which husband and wife have to each other's society, comfort and affection"[2] Restitution of Conjugal Rights was an action available in the ecclesiastical courts of the United Kingdom, a type of court that dealt with religious and spiritual matters, and later became an action in the Court for Divorce and Matrimonial Causes.

However, in 1969 the United Kingdom's Law Commission report recommended the abolition of the action, and consequently, Restitution of Conjugal Rights was abolished by the Matrimonial Proceedings and Property Act 1970. However, till date it remains a remedy available to Hindus, Muslims, Christians and Parsis, as well as those married under Special Marriage Act, in India.

There are various statutory provisions that allow for the action of Restitution of Conjugal Rights. Section 9 of the Hindu Marriage Act 1955 states that-

"When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly." [3]

The explanation clarifies that when the question arises as to whether there was a reasonable excuse or not, the burden of proof lies on the spouse that has withdrawn himself/herself from the society of the other. Further, Section 13 1-A(ii) of the Hindu Marriage Act states that a non-compliance to the decree passed by the court to reconcile rehabilitation under the previous section, is a ground for divorce. Restitution of Conjugal Rights is also applicable to other religious communities as it finds its mention in Section 22 of Special Marriage Act 1954, Section 32 of Indian Divorce Act 1869, Section 36 of The Parsi Marriage and Divorce Act 1936 and finds its conceptual presence in uncodified Muslim Law as well.[4] Rule 32 Order XXI of Code of Civil Procedure 1908 deals with "Decree for specific performance for restitution of conjugal rights, or for an injunction" wherein sub-rule 1 states that non-compliance to a decree of restitution of conjugal rights could attract detention in civil prison, or attachment of property, or both.[5] On the other hand, Rule 33 Order XXI gives court the discretionary power of executing decrees for restitution of conjugal rights[6].

While Section 22 of the Special Marriage Act[7] is the same as Section 9 of HMA, Section 32 of the Indian Divorce Act replaces 'aggrieved party' with 'either wife or husband' and allows for Christian couples to go to the High Court as well.[8] Section 36 of The Parsi Marriage and Divorce Act has been framed differently than the provisions for the respective remedy in other personal laws. Here, instead of 'withdrawn from the society' the husband and wife are stated to have 'deserted or without any lawful grounds ceased to have cohabit' with their spouse, the party who has been deserted or with whom cohabitation shall have so ceased may sue for restitution of his or her conjugal rights.[9]

The use and presence of the restitution of conjugal rights in Muslim Law has been enunciated further later in the paper, but here too the remedy is available to an aggrieved party when their spouse has withdrawn from their society without any reasonable excuse.[10] Thus, under all personal laws, the requirement of the provision of restitution of conjugal rights is that first, the withdrawal by the respondent from the society of the petitioner.

Second, the withdrawal is without any reasonable cause or excuse or lawful ground. Third, there should be no other legal ground for refusal of the relief and fourth, the court should be satisfied with the truth of the statement made in the petition. In various cases, the court has drawn out certain situations amounting to reasonable excuse as a defense for a person to withdraw from the society of their spouse's.

First, is a ground for relief in any matrimonial cause. Second, matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficiently weighty and grave. And third, such an act, omission or conduct which makes it impossible for the petitioner to live with the respondent[11].

The constitutional validity of restitution of conjugal rights has been previously challenged before the courts, once in Andhra Pradesh High Court in T Sareetha v T Venkata Subbaiah[12], then in Delhi High Court in Harvinder Kaur v Harmender Singh[13] and finally in the Supreme Court in Saroj Rani v Sudershan Kumar[14]. While in the Andhra Pradesh High Court the judgement declared Section 9 of the Hindu Marriage Act to be unconstitutional, the Delhi High Court and the Supreme Court decided otherwise, and the hierarchical structure of the Indian Judiciary enables the Supreme Court of the nation to have the final say, and thus, the remedy remains constitutional till date.

This paper will be analysing how, while being a gender-neutral law, restitution of conjugal rights as a provision is detrimental towards women and treat them as a property of their husband. The exception to Section 375 of the Indian Penal Code, excluded marital rape from being a crime, and restitution of conjugal rights forces women to go back to an environment where they have been facing domestic violence, torture or sexual abuse and can often lead to unwanted pregnancies.

Thus, this paper will be arguing as to why restitution of conjugal rights should be struck down as it infringes several fundamental rights - such as Article 14, Article 21 and Article 19, and makes a married woman lose agency over herself.

A Colonial Inheritance

Restitution of Conjugal Rights is a law that has been colonially inherited by India. It was a right available originally in the ecclesiastical courts of the United Kingdom that dealt with religious and spiritual matters. Later on, this action fell within the jurisdiction of the Court for Divorce and Matrimonial Causes. The remedy originated from the Victorian notions based in patriarchal values, that a woman was to be considered as the property of her husband, and thus, he had a right over her just like he had over any of his other chattels. In 1969 a Law Commission report recommended the abolition of the action, and it was abolished by the Matrimonial Proceedings and Property Act 1970.

Section 13 and Section 21 of The Matrimonial Causes Act 1965, dealt with conjugal rights. Section 13 (1) stated that both, a husband or a wife can come to court for this remedy, and the court may grant a decree on satisfaction that first, the allegations contained in the petition are true. Second, there is no legal ground why a decree for restitution of conjugal rights should not be granted. Section 13 (2) stated that a decree for such a remedy shall not be enforced by imprisonment.[15]

And Section 21 (1) dealt with the scenario of when the decree for restitution of conjugal rights is made on the application of the wife, the court could make orders regarding the alimony of the wife, and if the husband does not oblige with the restitution decree in favour of the wife, he can be ordered to pay to the wife, periodical payments that the court thinks just. The latter order can be enforced in the same manner as an order for alimony. Section 21 (2) on the other hand dealt with scenarios where decree for restitution of conjugal rights is made on the application of the husband and it appeared to the court that the wife is entitled to any property, either in possession or reversion, or is in receipt of any profits of trade or earnings, the court could:
  1. Order a settlement of the property or any part of it to be made to the satisfaction of the court for the benefit of the husband and of the children of the marriage or either or any of them; or
  2. Order such part of the profits or earnings as the court thinks reasonable to be paid periodically by the wife to the husband for his own benefit, or to him or another person for the benefit of the children of the marriage or either or any of them"[16]
Item XIX of The Law Commission's Second Law Reform Programme aimed at the eventual codification of family law and whether the provision of restitution of conjugal rights should be retained or not arose as an important question which needed deliberation.

Previously, desertion was not treated as a matrimonial offence in the ecclesiastical courts and deserted spouse's only available remedy was to obtain a decree of restitution of conjugal rights, and a disobedience to the same was punishable by excommunication. Later, the Ecclesiastical Courts Act 1813 substituted such a punishment with imprisonment not exceeding six months, but the act was removed by the Matrimonial Causes Act 1884. Instead a failure to comply with a decree for restitution was considered to be statutory desertion, entitling either spouse to a decree of judicial separation, and in case of the husband not complying to the decree was coupled with adultery, the wife would be entitled to divorce.

However, the Matrimonial Causes Act 1923 made adultery by the husband to be enough grounds for a wife to seek divorce, and a reliance on the non-compliance of the husband to a restitution decree ceased to exist. The Supreme Court of Judicature (Consolidation) Act 1925 repealed the Matrimonial Causes Act 1884, while Section 185 of the Matrimonial Act was relanced and non-compliance to the decree was kept a ground for judicial separation, such a failure was not to be constituted as desertion.

Since 1925 till the time of the law commission presenting this report the law regarding restitution of conjugal rights remained unaltered, in the event of non-compliance to such a decree, the petitioner, whether be the wife or the husband could at once present a petition for judicial separation. [17] If the petitioner is a wife she had the option of being able to obtain for herself through a financial provision alimony, either permanent or periodical. [18]

In case of the petitioner being the husband, he could secure for himself and the children of the marriage, an order to receive periodical payments out of his wife's profits and earnings as well as settlement of property or a part of it, that the wife might have had. [19] The court has the option of making orders for custody, maintenance and education of any 'relevant' children of the family. [20] While a failure to comply with a restitution decree did not amount to automatic desertion, it was treated as a prima facie evidence of desertion. [21]

The commission examined that between 1965 to 1967 the remedy was barely used, with the total number of petitions filed were 105, 60 of them were filed by husbands while 45 of them were filed by wives. Out of these petitions, 31 decrees were granted, out of which 11 were granted to husbands and 20 were granted to wives. Hence, the annual average for the remedy at that time was 35, out of which 10 decrees were made. In the three years, total number of petitions filed in London was 68, out of which a detailed analysis was done of 64 of them, while 35 of these were filed by husbands the rest 29 were filed by wives.

In 11 petitions a decree for restitution was granted, in 21 petitions the case led to proceedings for divorce or judicial separation, in 1 the petition was dismissed for want of prosecution, and the rest of the petitions was either dismissed by consent, or there were no further updates in the proceedings even when an answer was filed alleging just cause, cruelty etc. None of the husbands filed for financial remedy, while 12 wives applied for alimony pending suits, or permanent or periodical alimony where they had obtained a restitution decree.

The arguments in favour of retention of restitution of conjugal rights, to sum up briefly, were, first, that even if the decree has the possible effects of establishing desertion or enabling one to obtain a financial relief, these were incidental. The remedy remains a last resort for a spouse to make an attempt at preserving their marriage.

The fact that out of 29 petitions by wives, only 12 sought and were able to obtain financial support is an indicator towards the fact that majority of these petitions are not brought with an intention of meeting financial ends.

One case which was dismissed at the petitioner's request and 8 cases in which nothing happened could suggest a possible reconciliation. Hence, if a legal proceeding could result in marriages being saved, even if the number is negligible, it should not be abolished. Second, the Morton Commission had come to the conclusion that the remedy should be retained.

For example, if a wife was unable to obtain a maintenance order on the ground of the husband's 'wilful neglect', but was able to get a decree for restitution of conjugal rights, she would get an ancillary financial provision. Moreover if the remedy was discontinued, a husband would lose the right to be entitled to any financial provision for himself and his children. A restitution decree was also helpful in keeping a record of whether there was separation in a marriage or not, something which can often not be very clear.

Lastly, it was argued that if one spouse, who is the petitioner wants the other spouse back, on the satisfaction of the court the respondent can be merely ordered to return, and the petitioner may feel that thus position is not 'exacerbated by a finding that the respondent has committed the matrimonial offence of desertion or willful neglect to maintain as the case may be.'[22]

The counter arguments to the above which favoured the abolition of the remedy of restitution of conjugal rights were that first, if restitution proceedings were to be perceived as a demonstration of the petitioner's endeavor to resume matrimonial life and save the marriage, then that in itself is a weak argument as there are other means to save a marriage which are far more effective than a legal recourse.

Second, when it comes to a restitution decree establishing desertion, it can also be done by obtaining a decree in the magistrate's court on grounds of desertion, a remedy which is gender neutral.[23]

Third, when it comes obtaining financial support, that cannot be argued to be the real purpose of the restitution proceedings as the appropriate remedy for the same lies in Section 22 of the Matrimonial Causes Act 1965, whereby a wife whose husband has willfully neglected to maintain her or her children is entitled to such a remedy.

"Proceedings for willful neglect are on the same footing as proceedings for restitution of conjugal rights, so that the wife's right to maintenance depends in either case on her ability to justify her living apart from the husband"[24] While it was acknowledged that such a provision does not help the cause of a husband seeking financial supports, the law commission was planning on bringing about change to the same.

"In our forthcoming Report on Financial Provision in Matrimonial Proceedings we are recommending that in proceedings under section 22 there should be available alimony pending suit and, on the making of an order, unsecured and secured maintenance and a lump sum, a husband being able to apply in the like circumstances as he can now under the corresponding provision in the magistrates' court."

The fact that out of 64 cases that were examined, only 12 wives had applied for financial provision and not even a single husband had made such an application, was also stated. Fourth, the fact that after the filing of the petition, there were no further evolvements in the proceedings could also indicate that the petitioner realised the fact that the restitution proceedings would not bring their spouse back. Even when reconciliation is taking place, it cannot indicate the fact that restitution proceedings bring about reconciliation as reconciliation can occur during all types of proceedings, for example, in a divorce proceeding even after the decree has been granted.

Fifth, a court order which directs adults to live together cannot be deemed to be an appropriate method of making an attempt towards reconciliation. Sixth, it brings the law into disrepute and the futility of a restitution decree could be illustrated by citing Nanda v Nanda whereby a wife had obtained a restitution decree and has entered the husband's flat 'and the court was prepared to grant an injunction to restrain her from molesting and entering on the premises'.[25] Last, the fact that this remedy is barely ever used is an indicator towards the fact that it is not an effective remedy.

The committee received an overwhelming amount of comments in support of the abolition of the remedy, post the arguments discussed above which was a part of its Working Paper, and hence it recommended that restitution of conjugal rights as a remedy needed to be abolished. A draft clause was framed and subsequently, the Matrimonial Causes Act 1965 was amended

No person shall after the commencement of this Act be entitled to petition the High Court or any county court for restitution of conjugal rights ; and accordingly section 13 (power to grant deoree) and section 21 (ancillary provisions) of the Matrimonial Causes Act 1965 shall cease to have effect except in their application to proceedings on or arising out of a petition for restitution of conjugal Rights presented before the commencement of this Act.

Hence, restitution of conjugal rights was abolished in the U.K. as it was barely ever used, and the other aspects such as the financial provision, grounds for divorce were already met by provisions of other statutes. Since the remedy was unnecessary the United Kingdom decided to abolish it. This shows the shift in how marriage as an institution was perceived, and how it was viewed differently in a feudal society compared to in the modern developing one.

The previous notion of treating spouses as each other's property as a core feature in the institute of marriage has changed, the desperation to safeguard marriages has reduced and instead individuals in a marriage are given greater autonomy to make decisions without the interference and hassles of going to court.

Sanctity Of Marriage Under Hindu Law

Traditionally, a Hindu marriage does not find its base by way of a contract but that of a gift, wherein the bride or the daughter is given to the groom during solemnization of marriage by the bride's father performing kanyadanam which in sanskrit translates to 'giving away the bride'.[26] After the compulsory ritual of kanyadan, it is followed by a ritual called Saptapadi, where the 'bride and the groom hold hands and take seven steps together as husband and wife as they walk around the God of Fire or Agni', and make a promise to 'safeguard and maintain their eternal friendship'.[27]

As per hindu law, this sacred knot is said to be tied between two souls and is supposed to exist upto seven lifetimes, and thus, a hindu marriage is permanent and sacramental in nature. Overall a hindu marriage is important for a hindu to perform their religious responsibilities, for example, Dharma, Artha, Kama and Moksha - pious duties that will lead to a wealthy way of life. According to the puranas "Hindu marriage is a consecrated foundation concocted by the Supreme Being for two vital purposes".

First, is procreation, and help the wheel of life move forward, and ensure the continuation of life on earth. Second, to establish a spiritual connection within oneself, and the couple performing religious fidelity. Hence, hindu marriage is divine in its nature. Moreover, it is also meant to be an everlasting bond and is permanent in its nature, and is said to exist even after the death of either spouse. It is also indissoluble in nature, and the marital bond cannot be broken, and the couple is expected to work towards the spiritual as well as the material satisfaction of the family. The Manu Dharma and Apastama Dharma enunciates the indissoluble nature of a hindu marriage.

While the Hindu Marriage Act, 1955 is based heavily on Sanskrit Law, it has had amendments to meet the needs of the modern society and thus, introduced separation and divorce as a concept in Hindu marriage. The western culture has influenced the way Indian Hindus perceive the marital bond and what they expect of it. The Child Marriage Restraint Act also laid down the minimal age of marriage, 18 for female and 21 for male, in case of a child's marriage being arranged by the family at a earlier age, consummation of such marriages were not to take place before the man and his wife attained the minimal legal age.

The Special Marriage Act, 1954 also enabled not only inter-caste marriages, which were not allowed as per the Hindu Shastras but also inter-faith marriages. In India, marriages are often perceived as an institution that helps two families into joining hands rather than an institution for two individuals who decide to live a conjugal life. Hence, this act helps individuals in marrying a person of their choice and keeping their family out of the same.

Conjugal Rights And Islam

Muslim Family Law in India is not properly codified unlike statutes for other religious communities, and hence, in order to deal with the family law problems of those who belong to the muslim community, the personal law Shariat applies. The Muslim Personal Law (Shariat) Application Act, 1937 clarifies that matters relating to marriage, succession, inheritance and charities, Muslims are governed by their Shariat Law. A muslim woman is guided by the Dissolution of Muslim Marriage Act 1939 when it comes to being provided with certain grounds for divorce, and The Muslim Women (Protection of Rights on Marriage) Act 2019 criminalizes triple talaq.

The concept of marriage in Islam is not a sacramental one like a Hindu marriage, but that of a contractual relationship as it is necessary to fulfill certain terms and conditions as per the nikahnamah in order for the marriage to be a valid one, similar to a contract. The Court in the case of Abdul Kadir v. Salima had held that "Muslim marriage is a civil contract between bride and groom".[28] There are three types of marriages, first is a valid marriage wherein all conditions are fulfilled, second is void marriages where the situation is that of absolute prohibition and third, is a irregular or fasid marriage, which has no legal effect before consummation, and post consummation the wife is entitled to a dower or mehr.

According to Faiz Badruddin Tyabji, the remedy of restitution of conjugal rights are available to muslim married couple as well, and he states that -

"When either of the spouses withdraw from the society of another without any reasonable excuse, the aggrieved party may apply by filing a petition for a decree of restitution of conjugal rights and if the court has no valid reason to reject the petition then the court may order the decree in favour of petitioner".[29]

The court in Moonshe Bazloor v. Mohammed Khan had held that if a wife had ceased to cohabit with the husband without a lawful cause, the husband could sue the wife for restitution.[30] There are several defenses available to a Muslim wife, if the husband files for a remedy of restitution of conjugal rights.

First, in case there is no valid marriage, for example, in Bakh Bivi v. Quain Din, the court did not grant a restitution decree in favour of the husband since he had married the muslim woman during her period of iddat.[31] Second, A wife can choose to not stay with the husband if the whole prompt dower or mehr is not paid, and the husband can only use this remedy on the payment of the complete prompt dower, and this rule applies even if the marriage is consummated.

Third, if there is legal cruelty against her which is stated under sub-section VIII of Section 2 of the Dissolution of Muslim Marriage Act,1939, and her life is unsafe. In the case of Itwari v. Ashgari[32] the court held that while the husband having a second wife is not a reasonable excuse to not cohabit with him, sometimes such a situation can result in the first wife facing cruelty. Fourth, if the husband makes a false charge of adultery on the wife. Fifth, if the husband is impotent. [33]

Thus, owing to its contractual nature as per Shariat Law, unlike a Hindu marriage, Muslim marital law does give scope to Muslim woman to defend herself against a restitution decree, and not go back to a matrimonial home in which she is uncomfortable, however, the existence of such a remedy can become unfavorable for her in a patriarchal society and become a barrier in the way of her enjoying her fundamental rights. It can lead to an unwanted situation for her just like women who are married under Hindu Marriage Act, or other relevant statutes.

Development In Case Laws Over The Years Regarding Status Of Women

Law has always been an interesting tool, as while it helps maintain the status quo, it also helps bring about change in society. It can be seen as a reflection of the societal norms, or the instrument that enables the society to change their values. Hence, an analysis of the judgements by the courts over the years regarding the expectations of a 'reasonable woman' becomes important to understand the development in the status of women in society, and how law is used as a tool to uphold patriarchal notions but at the same time can also be used to make the society a better place for women.

Dating back to a judgement from 1938, a 'reasonable woman' was expected to not have problems with her husband having a second marriage[34], even if she was married off at the age of nine, or not had the option to choose her husband, would not be a ground of divorce since it 'was not relevant under Mohemeddan Law'[35].

Even a wife beginning to hate her husband was not a sufficient reason. [36] If a woman refused to submit medical examination to the court to prove that she was a virgin before getting married, she would be considered to have a hysterical strange attitude. [37] A woman getting small beatings from her husband, especially those belonging to the lower class being chastised by their husband moderately, were not to be considered as legal cruelty. [38]

Post-marriage, the guardianship of a girl shifter from her father to her husband[39]. If without the will of the father or the husband, depending on the girl's marital status, a man was found with a girl, whether it was with her or not since it was irrelevant, that man would be liable for unlawful detention. [40] A mother was not considered to be a guardian of her daughter, and if the minor daughter was facing problems in her marital home regarding her husband wanting to consummate the marriage, the court felt it was better for the daughter to stay in a public institute than with her widowed mother. [41]

However, in today's society the status of women have changed. While many recent judgements are quite problematic and sexist, there are many that give women the equality and respect they deserve. While deciding on the land-mark case of Joseph Shine, the 5 Judge Supreme Court had held that -

"In adjudicating on the rights of women, the Court must not lose sight of the institutions and values which have forced women to a shackled existence so far. To fully recognise the role of law and society in shaping the lives and identities of women, is also to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country."[42]

The court was of the opinion that just drawing a conclusion that a woman who entered into a marriage was willing to give consent to her husband all the time, takes away her sexual autonomy, and this violates her liberty and dignity. The court further held that "A statutory provision belonging to the hoary past" which was demeaning the status of a woman, fell foul of modern constitutional doctrine and needed to be struck down.[43]

In Shakti Vahini v. Union of India, the court felt that the changing socio-economic status of women, which led them to challenge the patriarchal society, made them victims of honour killings, and thus the government must ensure ways to protect them.[44] Hence, the law recognises the fact that a woman does in fact deserve better conditions to live in, and should not simply fit into the mold of patriarchy that has oppressed their gender for generations. Thus, it is supportive of the changing status of women in the modern society. However, on reading of an old 1938 judgement which stated-

"Upon her marriage, a hindu wife should become one with the family of her husband….yet, (s)he has in her heart remained in the family of her father. She has sided with her father's house against her husband's house; she has refused all efforts at reconciliation and insulted and outraged his house by the charges of misconduct she has brought against him and his widowed sister-in-law". It was "clear that she left her husband's house without his permission; she did not ... realise her position as a Hindu wife, and though it may well be that time and the spread of education have softened the harsh austerity of the simple rule that a Hindu wife must look on and revere her husband as a god, yet it is clearly her duty to honour and obey him...."[45]

One is left to contemplate, as to whether every time the remedy of restitution of conjugal rights is granted in favour of a husband, when the wife does not want to go back to her matrimonial home, the law reinforces the old status of a woman, despite of its current judgements that promise to uplift her status.

Previous Cases Challenging The Constitutionality Of The Remedy

As mentioned earlier, the constitutional validity of restitution of conjugal rights has been previously challenged thrice before in the courts. In T Sareetha v T Venkata Subbaih, Sareetha was a well known South-Indian actor, and was allegedly given off to Venkata Subbaih in marriage while she was still in high school and was of sixteen years of age. The couple had been residing separately for five years, post which Venkata Subbaih had applied for a restitution of conjugal rights and gotten an order in his favour. Sareetha the respondent, had then approached the Andhra Pradesh High Court in the form of an appeal and with a prayer claiming that such a remedy is unconstitutional.

The court held that "though the state can put reasonable restrictions on the fundamental rights, it is only when there is a greater state interest in doing so, and there is no such reason in the restitution of conjugal rights. Section 9 doesn't even satisfy the traditional classification test because it has come from English society, and isn't inherit from the Indian culture. It also fails the equality test because though this remedy is available to both spouses, a woman, who is inherently unequal to a man, rarely uses it, hence making the law partial and one-sided. Secondly, it fails to pass the test of minimum rationality required of any state law.

Hence the Court held Section 9 to be unconstitutional."[46] In Harvinder Kaur v Harmender Singh, Harvinder Kaur had left her marital home and withdrawn herself from her spouse's society on grounds of facing cruelty from her in-laws and neglect from her husband, and was willing to go back if her husband set up a separate ressidence for the married couple away from the joint family. However, the husband got a restitution order against Harvinder, and thus she approached the Delhi High Court challenging the constitutionality of the remedy.

While deciding on Harvinder Kaur v Harmender Singh, Justice Rohtagi believed that the decision by Justice Choudhary in T Sareetha was incorrect and held that "Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life, neither Article 21 nor Article 14 have any place. In a sensitive sphere which is at once most intimate and delicate, the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond." [47]

In Saroj Rani v Sudershan Kumar, after getting a consent decree on restitution of conjugal rights, the wife was thrown out of the house, and the husband was taking advantage of his own default to comply with the decree and seek an easy divorce. The divorce was granted by Punjab & Haryana High Court, after which the wife approached the Supreme Court of India, with one of the issues being whether such a remedy infringes fundamental rights under Article 13,14 and 21 of the Indian Constitution.

While deciding on the particular issue of constitutionality of Section 9 in this case, the Supreme Court upheld Harvinder Kaur stating that the main idea behind Section 9 was to preserve marriage. The rationale used by the court was that first, conjugal rights were not merely a 'creature of the statute' but a right which is inherent in the institution of marriage itself.

Moreover, the court opined that Section 9 has sufficient safeguards to prevent it from being a tyranny. Second, pre-existing law, namely Rule 32 of Order 21 of the Code of Civil Procedure also deals with decree for specific performance for restitution of conjugal rights or for an injunction. Third, if the purpose for the decree of such a remedy as per the respective section is understood in its proper perspective and the 'method of execution in cases of disobedience' is kept in view, the section does not violate fundamental rights.

Lastly, the court opined that what is of significance is that disobedience to a decree of restitution of conjugal rights is willful unlike that of a decree for specific performance, and thus needs to be enforced by attachment of property. This would help prevent break-up of marriages and help serve a social purpose.[48]

The Remedy Being Violative Of Fundamental Rights

Despite the previous judgements, including that of the apex court, considering the fact that in the recent years, with the change in society, and the developments in the field of constitutional law as well as family law, the status of women have changed. Hence, on the following grounds, it can be argued that remedy goes against the fundamental rights of women. First, restitution of conjugal rights, while being gender-neutral, apply differently to a woman than a man, in a patriarchal society.

Hence, it goes against the essence of Article 14 of the Constitution which promises an individual the fundamental right of 'Equality before the law':
"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth"[49]

The remedy enables the treatment of wives as if they were the property of their husbands, and they are not put on an equal footing as their husbands, but made to feel inferior. For example, in Mousami Sarkar v Subhendu Sarkar, even when the wife claimed that her in-laws' house had insufficient accommodation, and wanted her husband to set up a separate residence in a land given by the wife's father, the husband got the restitution decree in his favour, and the wife was asked to cohabit with her husband in her in-law's place.[50]

Moreover, in Narendra v. K. Meena, the Supreme Court had held that a wife forcing her husband to leave his family amounts to 'cruelty' and can be used as a ground for seeking divorce under the Hindu Marriage Act, 1955. [51] This shows that while, an individual is promised equal treatment despite their sex, by our constitution - the law shows a differential treatment towards women and men, after their marriage, and hence, sides with the patriarchal society.

If separation from one's parents amounts to cruelty, women have been treated with cruelty for generations, as the society expects them to leave their household and set their matrimonial home as per what is convenient to the man in the relationship - the husband. A remedy for restitution of conjugal rights, thus, makes a woman entrapped in a toxic household, even where she might be facing mental or physical abuse from her husband's family.[52]

Not wanting to return to the matrimonial household where it is impossible for her to cohabit with her in-laws, or not abiding by a restitution decree, will result in her marriage ending with a divorce, a consequence that a woman might feel is undesirable.

The result of such an unequal treatment forms the basis of the violation of several other fundamental rights. Article 19 (1) (a) of the Constitution gives an individual the freedom of speech and expression and Article 19 (1) (d) gives an individual the freedom to move throughout the territory of India without, and these both are violated by the remedy in question.

Restitution of conjugal rights also acts as a hindrance in the career path of a woman and violates Article 19 (1) (e) which states that every citizen has the right to practice any profession or to carry on any trade or business of their own choice. In the appellate stage, Tripura High Court had denied to grant a restiution decree to the husband, and had instead asked the parties to reconcile and reunite with the help of well-wishers in the case of Mani Gopal Saha v. Jhuma Badhan[53].

The petitioner husband claimed that the wife has gotten a Government job because of his disability, and was unwilling to come back to the matrimonial home thereafter. In order to analyse this case, two preceding judgements are of importance - while one is by the Punjab & Haryana High Court in the year 1977, the other is by the Delhi High Court decided in 1978.

In, Kailash Vati (Wife of Ayodhya Prakash) v. Ayodhya Prakash, the Punjab & Haryana High Court was deciding on the issue of whether a wife for reasons of employment can unilaterally withdraw from the marital home and substitute it with a mere right of access to the husband whenever the situation is permissible. The court in its rationale gave three situations, first, is the situation given in the factual scenario of the case in question, which was that the husband married a woman in a public post and if that would amount to him impliedly giving up his right to a common matrimonial house with his wife.

The court opined that even in such a situation it is not implied that the husband has waived off his rights to claim the society of his wife, instead since the wife has willingly entered the bond of matrimony, it is implied that she has consented to her marital obligations which consist of the 'obvious and known marital duty of living with her husband', that is an essential ingredient of married life. Apart from this, the court also analysed other two possible scenarios.

In a situation where the husband encourages or 'allows' his wife to take up employment away from the matrimonial home, because of financial constraints where both individuals need to work, the husband does not permanently lose his right to claim for his wife's company, and at a later stage might object to her living away from the matrimonial home.

The third is when the wife accepts employment, away from the matrimonial home against the wishes of her spouse, she unquestionable case of unreasonable and unilateral withdrawal from her husband's society and a violation of marital obligations on her part. All of the situations given by the court shows that the wife was treated as an inferior, and at the whims and mercy of her husband.

However, the Delhi High Court took a contrasting view in the case of Swaraj Garg v. K.M. Garg where it was held that nothing in Hindu Law forbids the wife from choosing the place of the matrimonial home, and if she was earning more than the husband, that amounts to sufficient grounds for her to live separately, and thus, denied the husband a decree of restitution of conjugal rights.[54]

While this judgement is quite progressive for its time, it did leave space for the argument as to what would happen in a situation where the husband was earning more than the wife, and if she would get to choose the place for matrimonial residence in such a situation.

As society moves towards perhaps a more equal path, the courts have recently shown some improvement with regards to a married woman's right to work. In 2013, while the Bombay High Court did not grant a wife a decree for restitution, asking her husband to join her society in Pune and set up a matrimonial home there, when her husband in Bombay was entering into a second marriage, it also held that the husband was not entitled to a divorce as a wife's failure to transfer her job, even if she promised so before marriage, would not amount to cruelty and would not be a sufficient ground for divorce. [55]

In a more recent judgement in 2021 the Bombay High Court has also held that when a wife is staying abroad in Canada for her career would not amount to 'cruelty to husband or desertion of her spouse', and in the factual scenario given in the case she was residing with the couple's child. [56]

Hence, while there have been judgements that safeguards a married woman's fundamental right to profession, the remedy of restitution of conjugal right can still be used as a tool in the hands of those with a patriarchal mindset to harass those women who are choosing their career over the sexist matrimonial duties.

Lastly, it can be argued that the remedy violates an individual's right to privacy. While the apex court in the casse of Saroj Rani, did take the same view as the Delhi High Court had in the case of Harvinder Kaur - that the law was not allowed interfere in the private space of home. However, the recent development in case laws with regard to right to privacy, can be argued to support the view taken in the case of T. Sareetha , that the remedy results in a woman losing control over her own body and instead gives the control over to the state, it compels an individual to have sexual intercourse and does not leave her with a choice.

Article 21 of the Constitution deals with protection of life and personal liberty and states that:"No person shall be deprived of his life or personal liberty except according to procedure established by law"[57] The Supreme Court's nine judge bench, in the landmark judgement of K.S. Puttuswamy v. Union India, while deciding on a PIL challenging India national identity project, held that:

"right to privacy is a fundamental right that does not need to be separately articulated but can be derived from Articles 14, 19 and 21 of the Constitution of India. It is a natural right that subsists as an integral part to the right to life and liberty. It is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/ she makes. It protects an individual from the scrutiny of the State in their home, of their movements and over their reproductive choices, choice of partners, food habits, etc."[58]

Following this judgement, the Supreme Court in the land-mark judgement of Navtej Singh Johar, on the basis of the fundamental right to privacy had decriminalised homosexual intercourse between consenting adults.[59] Thus, even a married woman should not be made to lose her sense of self, and is entitled to have a life of dignity and respect, and be given the choice as to whether she wants to engage in sexual intercourse with her spouse or not.

A life of dignity is possible when she is able to claim her fundamental right to privacy, equality, profession, speech and expression and to move about freely within her national territory, without any hindrances.

Marital Rape Is Not A Criminal Offence In India

Marital Rape is not a criminal offence in India. Section 375 of the Indian Penal Code deals with rape and makes it a criminal offence, however, makes an exception, with Exception 2 stating that - "Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]"[60]

The Supreme Court in the recent landmark judgement of ​​Independent Thought v. Union of India, criminalised unwilling sexual contact with a wife between fifteen and eighteen years of age as well. Hence, currently, a husband's forceful or non-consensual sexual intercourse with his adult wife remains immunized from prosecution and is considered 'legal'.

Despite being a signatory of the United Nations Convention on the Elimination of all Forms of Discrimination against Women - which in its resolution has proposed the criminalisation of marital rape as such a form of discrimination as it goes against the law of equality and human dignity,[61]India has not inculcated this. Currently, India remains one of the only thirty-six countries in the world to not have criminalised marital rape.[62]

The law presumes the wife to have given perpetual consent to her husband to engage in sexual intercourse, whenever, after entering into a marriage. Just like the remedy of restitution of conjugal rights, this law too is colonially inherited and is a reflection of the British Victorian norms that are deeply patriarchal.

The Indian Penal Code was drafted in the 1860s when a married women was treated as if she were a chattel of her husband, and was not considered to be an independent legal entity, and thus, was not entitled to several rights that she enjoys now in a modern society - for example, filing a complaint under her own identity. [63]

Hence, Exception 2 is based on the fact that a married women's identity is merged with that of her husband, and hence, she would not have the right to complain that her own husband has violated her body. She is seen as a piece of her husband's property, and an individual cannot trespass into their own property.

However, in today's society, such a logic and viewing an individual, just because of their marital status as a chattel goes against basic principles of human rights - and infringes their fundamental right to equality, and life and liberty. The Supreme Court has held that Article 14 is subject to reasonableness test - that the classification must have a reasonable nexus in the objective an act is seeking to achieve.

Section 375 of IPC seeks to protect women and punish rapists who are guilty of such a gravious act, and Exception 2 frustrates this aim completely, and hence there is no rational nexus between the aim of the section and such an exception.

The apex court has also held that "[s]exual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female." and non-consensual sexual intercourse amounts to sexual and physical violence[64] in Suchita Srivastava, the court equated the right to make sexual choices to rights to 'privacy, personal liberty and bodily integrity under Article 21'[65] A rape victim has to undergo immense physical pain and mental trauma, whether she is married or not. To make matters worse, a wife who has been raped by her husband, has to cohabit and sleep with her rapist.

It is difficult for a married woman to escape such an abusive relationship as she is legally and financially tied to him, and hence, their physical and mental health are adversely affected and so is their ability to live with dignity. The husbands are made to feel as if they have a right over their wife's body, and can have sexual intercourse with them whenever they want, since, having their consent or not, does not matter and is not discouraged by the law.

In such a situation a woman might only be protect herself through civil remedies offered by statutes such as 'The Protection of Women from Domestic Violence Act' Adding on to this, when a woman is forced to go back to her matrimonial home because of the remedy of restitution of conjugal rights, she might have to face constant sexual abuse, harassment, lose her dignity and face unwanted pregnancies. Thus, she will be left feeling vulnerable and helpless considering her spouse has a court decree in his favour, and succumb to scenarios which she otherwise might have gathered the courage to escape from previously.

Conclusion
The remedy of Restitution of Conjugal Rights, thus, while being gender-neutral, affects women in an adverse manner. It does not satisfy the traditional classification test because it is a colonial inheritance based on Victorian patriarchal values. While the United Kingdom has abolished the remedy due to its rarity in usage, this paper argues that it must be abolished in India due to its excess amount of usage, as many a times it is used as a counterblast when the wife files a domestic violence, dowry or a maintenance case.

It becomes a major barrier in the way of a married woman being able to enjoy her fundamental rights such as – right to equality, liberty, dignity, freedom of speech and expression, freedom to profession and freedom to roam around within the territory of India. The right to one's sexual agency is an important factor to enjoy one's right to privacy and live with dignity.

As marital rape remains outside the purview of criminal law, a woman against whose wishes a decree for restitution has been granted, many a times, faces the problem of being coerced into sexual intercourse and other sexual acts that she might not feel comfortable with. In an independent democratic nation, a married woman loses agency over her body, and is made to feel as if her body is a piece of her husband's property.

The existence of such a remedy makes our nation go back to the times when the status of a woman was deplorable. Hence, the remedy must be held unconstitutional and abolished in this nation, so that even if a woman is married, she is able to live a life of dignity, having ownership over herself and body, and not feel inferior to anyone else, as if she was her husband's chattel in this deeply sexist society.

End-Notes:
[1] Garner, Bryan A., and Henry Campbell Black. Black's Law Dictionary (9th ed. St. Paul, MN: West, 2009.)
[2] Ibid.
[3] Hindu Marriage Act, 1956 s 9
[4] Shivank Singh, 'A rights-based jurisprudence demands abolition of legal provision for 'restitution of conjugal rights' (The Leaflet, 1 June 2021)
[5] Code of Civil Procedure 1908, Rule 32 Or. XXI
[6] Code of Civil Procedure 1908, Rule 33 Or. XXI
[7] Special Marriage Act 1954, s 22
[8] Indian Divorce Act 1869, s 32
[9] The Parsi Marriage and Divorce Act 1936, s 36
[10] Faiz Badruddin Tyabji, Principles of Muhammadan law.(4th ed, N.M.Tripathi Bombay)
[11] Anonymous, Power of Court to Direct Restitution of Conjugal Rights (The Leaflet, 8 July 2021)
[12] T Sareetha v T Venkata Subbaih [1983] AP 356
[13]Harvinder Kaur v Harmender Singh [1984] Del 66
[14] Saroj Rani v Sudershan Kumar [1985] 1 SCR 303
[15] The Matrimonial Causes Act 1965, s 13
[16] The Matrimonial Causes Act 1965, s 21
[17] Matrimonial Causes Act 1965, s. 12.
[18] Matrimonial Causes Act 1965, s. 21 (1) (2)
[19] Matrimonial Causes Act 1965, s. 21 (3)
[20] Matrimonial Causes Act 1965, s. 34
[21]J. L. Nanda v Smt. Veena Nanda [1988] 2 SCR 348
[22] The Royal Commission, Report of Royal Commission on Marriage and Divorce, (Crnd. 9678, 1956)
[23] Matrimonial Proceedings (Magistrates' Courts) Act 1960, s 2
[24] Price v. Price [1951] NZLR 1097 ; Marjoram v. Marjoram [1955] 1 W.L.R.
[25] The Law Commission, Proposal for the Abolition of the Matrimonial Remedy of Restitution of Conjugal Rights (9th July, 1969)
[26]Diva Rai, 'Legal Sanctity of Hindu Marriage in view of Modern Socio Legal Development' (iPleaders, June 6 2021) accessed 2 October, 2021
[27]Ibid
[28] Abdul Kadir v. Salima & Ors. [1886] ILR 8 All 149
[29] Faiz Badruddin Tyabji, Principles of Muhammadan law.(4th ed, N.M.Tripathi Bombay)
[30] Moonshee Bazloor v. Mohammed Khan [1867] 11 Moo
[31] Mt. Bakh Bivi & Anr v. Quain Din & Ors [1934] Lah 907
[32] Itwari v. Ashgari [1960] AII 684
[33] S. R. Myneni. Muslim Law, Asia Law House, 5th Edition
[34] Rukibai v. Dr Partabrai Godhumal [1938] Sind 233
[35] Fatima Bibi v. Mian Eusoof Sulaiman Ahmed [1937] Rang 361
[36] Umat-ul-Hafiz v. Talib Hussain [1945] Lah 56
[37] Kishore Sahu v. Mrs Snehprabha Sahu [1943] Nag 185
[38] Kamala Gangalamma v. Venkatarami Reddi [1950] Mad 385; Emperor v. Koya Partab [1930] 2 Bom 593
[39] Tulsidas Janglyadas v. Chetandas Domadas [1933] Nag 374
[40] Abraham v. Mahtabo [1889] 16 Cal 487
[41] P. Venkataramaniah Chetty v. Pappamah [1948] Mad 103 (Rajamannar J) ;Radhe v. Emperor [1939] Sind 152
[42] Joseph Shine v. Union of India [2019] 3 SCC 39
[43] Joseph Shine v. Union of India [2019] 3 SCC 39
[44] Shakti Vahini v. Union of India [2018] 7 SCC 192
[45] Rukibai v. Dr Partabrai Godhumal [1938] Sind 233
[46] T Sareetha v T Venkata Subbaih [1983] AP 356
[47] Harvinder Kaur v Harmender Singh [1984] Del 66
[48] Saroj Rani v Sudershan Kumar [1985] 1 SCR 303
[49] The Constitution of India, Article 14
[50] Mousami Sarkar v Subhendu Sarkar [2021] SCC OnLine Cal 532
[51] Narendra v. K. Meena [2016] 9 SCC 455
[52]NFHS-3 indicates that 40% of married women in India face domestic violence of some kind
International Institute for Population Sciences. (2007). National Family Health Survey (NFHS-3), 2005-06: India. Mumbai, India: International Institute for Population Sciences (Chapter 15 Domestic Violence)
[53] Mani Gopal Saha v Jhuma Badhan [2020] SCC OnLine Tri 106
[54] Swaraj Garg v. K.M Garg [1978] Del 296
[55] V v. N [2013] 6 Mah Lj 598
[56] Prakashchandra Joshi v. Kuntal Prakashchandra Joshi & Ors [2021] 5 AIR Bom R 148
[57] The Constiution of India, Article 21
[58] K.S. Puttuswamy v. Union India [2017] 10 SCC
[59] Navtej Singh Johar v. Union of India [2018] SC 4321
[60] Indian Penal Code, s 375
[61] UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, A/RES/34/180
[62] India Today, 'Marital Rape in India' (India Today Web, 12 March 2016)
[63] Sarthak Makkar, 'Marital Rape: A Non-criminalised Crime in India' 34 Harvard Human Rights Journal 2021
[64] The State of Karnataka v. Krishnappa [2000] 4 SCC 75
[65] Suchita Srivastava v. Chandigarh Administration [2008] 14 SCR 989

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