Union Government defends restitution of conjugal rights before the Supreme Court

The Union Government has defended legal provisions enabling the restitution of conjugal rights, currently under challenge before the Supreme Court, on the grounds of preservation of institution of marriage and cohabitation.

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THE Union Government has defended the constitutional validity of the provisions for restitution of conjugal rights under the Hindu Marriage Act and the Special Marriage Act terming them as those aimed at bringing in cohabitation between estranged parties so that they can live together in the matrimonial home in amity. It, the Union Government has stated, serves a social purpose as an aid to the prevent of break up of marriage.

"The intention of restitution of conjugal rights is to preserve the institution of marriage and is aimed towards cohabitation and not merely sexual intercourse", the Union Government's affidavit states.

The affidavit has been signed by the Joint Secretary rank officer in the Ministry of Law and Justice in response to a Court's notice issued in March 2019 on a petition challenging the constitutional validity of the restitution of conjugal rights as provided in Sections 9 and 22 of the Hindu Marriage Act, 1955 and Special Marriage Act, 1954 respectively. In January 2020, the Supreme Court also issued notice to the Attorney General for India in the case.

The constitutional validity of Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908, has also been challenged.

Defending the validity of the provisions, the Union Government contends that the remedy of restitution aims to prevent a marriage from leading to an irretrievable breakdown. Thus, it protects the institution of marriage and family, which is the bounden constitutional duty of the legislature.

It adds that the law provides for the remedy of restitution of conjugal rights without there being any discrimination on the basis of sex and is available under the personal law of other religions also.

"The remedy of conjugal rights is gender neutral in constitution and gender neutral in its operation. It is submitted that in reality, the said remedy is availed of by spouses of both sexes and no evidence has been led to establish any discrimination in Operationalisation of the remedy", the affidavit states.

Also read: Restitution of conjugal rights: Case for its abolition

The government has submitted that the petitioner's argument that restitution of conjugal rights is a coercive measure on the 'intimate personal choice' to cohabit and take part in sexual intercourse with one's spouse, is wholly misconceived, fallacious, and utopian.

"Matrimony essentially entails a voluntary expression of spouses to cohabit and have a home and family together. Voluntary sexual intercourse is an integral part of marriage", the affidavit reads.

The affidavit was filed a day before a  bench comprising Justices Indira Banerjee, Surya Kant and M.M. Sundresh is scheduled to hear the matter on Tuesday.

Sneha Sharma, an aggrieved woman has also filed an intervention application supporting the petition. In her application, she has said that the interference by the State into the private and intimate affairs of a person who withdraws himself or herself from the company of another person was unreasonable, unfair and unjust.

Further, she has said that such interference by the State was required to be tested on the anvil of proportionality. To order the restitution of a relationship between two individuals could not be said to be in proportion to the supposed legitimate aim of the State in light of a recent Supreme Court judgment clarifying the contents of the right to privacy.

The petitioners have contended that provisions pertaining to the restitution of conjugal rights place a disproportionate burden on women and are therefore violative of Articles 14 and 15(1) of the Constitution. The provisions, they contend, are also violative of the rights to privacy, individual autonomy and dignity of individuals (both men and women) which are guaranteed under Article 21 of the Constitution.

In addition, it is based on a notion that regards women as 'chattel'. It is steeped in a patriarchal gender stereotype and is violative of Article 15(1) of the Constitution, say the petitioners.

Also read: A rights-based jurisprudence demands abolition of legal provision for 'restitution of conjugal rights'

The Supreme Court, in 1984 in Saroj Rani v Sudarshan Kumar Chadha, had upheld the constitutional validity of provisions pertaining to the restitution of conjugal rights. At that time, they did not have the benefit of the nine-judge bench of the Supreme Court in K S Puttaswamy v. Union of India, declaring 'privacy' as a fundamental right.

A report by the High-Level Committee on Status of Women, Ministry of Women and Child Development, in 2015 had declared that the restitution of conjugal rights had no relevance in independent India and the existing matrimonial laws already recognised the denial of consummation as a ground for divorce.

The Law Commission of India in its 'Consultation Paper on Reform of Family Law' issued on August 31, 2018, echoed the recommendation of the Committee in this regard and suggested the deletion of section 9 from the Hindu Marriage Act, 1955, section 22 of the Special Marriage Act,1954, and section 32 of Indian Divorce Act, 1869.