Supreme Court issues notice to Attorney General on a plea challenging the constitutional validity of restitution of conjugal rights under the Hindu Marriage Act and Special Marriage Act

[dropcap]T[/dropcap]HE Supreme Court today issued a notice to the Attorney General for India on a petition challenging the constitutional validity of the Sections 9 and 22 of the Hindu Marriage Act, 1955 and Special Marriage Act, 1954 respectively that empower the court to direct restitution of conjugal rights in a bid to force a warring couple to get along and work on their marriage.

Appearing for one of the intervenors, Senior Advocate Indira Jaising appraised the court that even though the apex court had issued notice in the petition on March 15, 2019, the Central Government had not filed any counter affidavit in the matter despite being served with a copy of the petition. She added, "it is an important matter, I would like to know the stand of the Central Government". Justice R F Nariman who was heading the bench said, "Of course, the matter is important".

The Court, accordingly, directed the Central Government to file its reply within eight weeks, and the petitioners to file rejoinder affidavit within two weeks thereafter. Matter to be listed thereafter.

Sneha Sharma, an aggrieved woman has 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 woman as 'chattel'. It is steeped in a patriarchal gender stereotype and is violative of Article 15(1) of the Constitution, say the petitioners.

Section 9 of the Hindu Marriage Act provides:

"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."

A similar provision is also available in Section 22 of the Special Marriage Act, 1954.

Privacy and the exercise of autonomy

The petitioners have relied upon the constitution bench decision in Joseph Shine v Union of India [adultery case] where the Supreme Court had observed "The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, Courts must step in to ensure that dignity is realised in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution."

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 KS 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.