Compelling wife to 'cohabit' with husband violates fundamental rights; it's time SC reviewed Section 9 of Hindu Marriage Act

Supreme Court must reconsider the constitutional validity of Section 9 of the Hindu Marriage Act, which empowers courts in India to effectively force a person to live with their spouse against their will

Raghav Pandey and Neelabh Bist March 05, 2019 17:05:50 IST
Compelling wife to 'cohabit' with husband violates fundamental rights; it's time SC reviewed Section 9 of Hindu Marriage Act
  • The provision of restitution of conjugal rights under Hindu Marraige Act violates an individual’s Fundamental Right to Liberty, Privacy and Dignity guaranteed by Article 21

  • The remedy of restitution of conjugal rights is generally used by husbands to strong-arm their wives into submitting themselves to their company

  • By forcing women to 'cohabit' with their husbands unwillingly, Section 39 of the Hindu Marriage Act takes away the right of women to separate from their husbands

The Supreme Court has recently agreed to hear a PIL against the provision of restitution of conjugal rights which empowers the court to effectively force a person to live with their spouse against their will. The bench of CJI Ranjan Gogoi and Justice Sanjiv Khanna has referred the case to a three-judge bench for hearing.

Section 9 of the Hindu Marriage Act encompasses the provision for the restitution of conjugal rights, according to which, if either of the spouses withdraws themselves from the society of the other, without reasonable excuse, the other party which is aggrieved has a legal right of filing a petition demanding for the restitution of conjugal rights. The court, if satisfied that there is no legal ground for the application to be refused, and based on the veracity of the statements in the petition, may pass a decree for restitution of conjugal rights.

Compelling wife to cohabit with husband violates fundamental rights its time SC reviewed Section 9 of Hindu Marriage Act

Representational image. Reuters

The constitutional validity of the provision has been debated time and again. The earliest instance was the case of T Sareetha versus Venkata Subbaiah, before the Andhra Pradesh High Court, in 1983. It was argued before the court that the provision was against the individual’s Fundamental Right to Liberty, Privacy and Dignity guaranteed by Article 21 of the Constitution.

Further, it was argued that by virtue of being available to both husbands and wives, who are inherently in unequal positions, the provision was violative of the Right to Equality by violating the rule of equal protection of laws. The court agreed with these arguments and held that, in effect, the decree compelled an unwilling wife to have sexual intercourse with her husband, thereby violating her bodily autonomy. The court thereby struck down Section 9 of the Hindu Marriage Act, declaring it to be violative of Article 14 and Article 21 of the Constitution.

Subsequently, the question was put forth before the High Court of Delhi in the case of Harvinder Kaur versus Harmander Singh, less than a year later, but here, the aforementioned Andhra Pradesh High Court judgment was dissented from. Ultimately, the Supreme Court, in the judgment of Saroj Rani versus Sudarshan Kumar Chadha, resolved the conflict between the two judgments by upholding the views put forth by the Delhi High Court, stating that the objective of the decree was only an inducement for the spouses to live together, and that it did not force an unwilling wife to engage in sexual relations with the husband. The aim was only to bring about "cohabitation" between spouses, and therefore, it was only focused on "consortium".

However, what the Supreme Court and the Delhi High Court perhaps failed to realise is that in India, marital rape is legal. The husband can very well force the wife to engage in sexual intercourse with him, without any consequences, save a long drawn divorce petition based on cruelty or a domestic violence petition based on sexual violence, both of which don’t involve any criminal impunity. Therefore, by subjecting an unwilling wife to forced "cohabitation" and "consortium", in effect, the decree effectively subjects the wife to forceful sexual intercourse with the husband, and in the process, also strips her of her bodily autonomy, dignity, and a fundamental liberty to take her own decisions related to her own life and body.

The remedy of restitution of conjugal rights violates a person's extremely basic essence, their very being, by dictating their decision on who to reside with. Both spouses in a marriage are not always on an equal footing, and in our country, which is immensely patriarchal, the wife is mostly — socially as well as economically — dependant on the husband. In fact, practically, in India, the remedy of restitution of conjugal rights is generally used by husbands to strong-arm their wives into submitting themselves to their company, and as a shield against possible cruelty and domestic violence cases by the wives.

In a country like India, where women are considered chattel of their husbands and are abandoned even by their own families after marriage, their only recourse to domestic violence and abuse is separation as divorce may lead to social stigmatisation. However, the remedy of restitution of conjugal rights takes away this right, by forcing women to "cohabit" with their husbands unwillingly and against their volition, which can have drastic consequences, and in the worst case scenario, may even lead to a threat against their lives. Therefore, the practical aspect of the provision needs to be acknowledged by the courts, and its constitutionality reconsidered.

It has been increasingly recognised that the law has a duty to intervene in the domestic sphere in order to protect the rights of individuals, which can no longer be violated under the garb of "family values" and "sacraments". The right to bodily integrity is gutted down by the state which controls the life of an individual by forcing them to stay in the companionship of their abusive husbands.

The remedy of restitution of conjugal rights has been criticised by leading jurists and sociologists and has been abolished in major countries including the UK, Ireland, Australia and South Africa. It is high time that India followed suit.

Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University, Mumbai; Neelabh Bist is a Fourth Year student of Law at Maharashtra National Law University, Mumbai

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