Divya Srinivasan

| @sdivya91 | November 2,2018

In September this year, India witnessed the Supreme Court issuing landmark judgments on gender discrimination and right to sexual orientation, by unanimously striking down Section 497 (Adultery) and reading down 377 (insofar as it relates to consensual same-sex relations) of the Indian Penal Code. Their progressive and robust interpretations of the constitutional right to substantive equality espoused in these judgments, particularly the opinions of Justice Dhananjaya Yeshwant Chandrachud, could have a wider impact on equality jurisprudence as it throws into question other issues including criminalisation of marital rape.

It remains to be seen how willing the Court will be to apply this admirable theory of transformative constitutionalism in more unpopular cases which it has already ruled on in the past, and where majoritarian stances are firmly entrenched in the favour of the status quo, such as the abolishment of restitution of conjugal rights

Apart from their progressive and robust interpretations of the constitutional right to equality, both decisions stand out for overturning previous verdicts of the Supreme Court on the same issue. In these judgments, the Court has admitted that changing times necessitate a re-look at the past, and provisions having the stamp of “serene approval” a few decades ago may not meet the test of constitutional morality today. It remains to be seen how willing the Court will be to apply this admirable theory of transformative constitutionalism in more unpopular cases which it has already ruled on in the past, and where majoritarian stances are firmly entrenched in the favour of the status quo, such as the abolishment of restitution of conjugal rights.

 

 An archaic remedy

 

Section 9 of the Hindu Marriage Act, 1955 allows the Court to grant a restitution of conjugal rights on application by either the husband or wife, when the other party to the marriage has withdrawn from the society of the other without reasonable excuse. A similar remedy is also available under the Special Marriage Act and provisions of Muslim, Parsi and Christian personal laws. The concept of restitution of conjugal rights was brought to India by the British Raj, imported from British ecclesiastical law at a time when the wife was considered chattel – or property – of her husband. This matrimonial remedy has long since been abolished in the United Kingdom and numerous other common law countries — but, inexplicably, continues to be upheld and implemented by Indian courts.

Section 9 of the Hindu Marriage Act, 1955 allows the Court to grant a restitution of conjugal rights on application by either the husband or wife, when the other party to the marriage has withdrawn from the society of the other without reasonable excuse. A similar remedy is also available under the Special Marriage Act and provisions of Muslim, Parsi and Christian personal laws

On the face of it, the idea that a Court could legally require an unwilling spouse to live in the same house as his/her partner — seems absurd, not to mention a violation of the fundamental rights of privacy, freedom of movement, dignity and equality guaranteed under the Indian Constitution. However, the provision has been upheld by the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha (1984) as constitutionally valid on the grounds that it performs an important social purpose of preserving a marriage. This outmoded notion which prioritises the so-called sanctity of marriage over individual rights and freedoms, particularly those of the wife, is in keeping with Indian societal and jurisprudential tradition, which has long been loath to concede that fundamental rights apply within the home.

 

                             Illustration credit: DNA

 

Recent judgments of the Supreme Court, however, are eroding the bulwark upon which the constitutional validity of restitution of conjugal rights rest. The first, crucial strike was delivered in 2017 by the Right to Privacy judgment (Justice K S Puttaswamy (Retd) v. Union of India), where the Court held that the right to privacy includes the rights to individual autonomy and personal choice. It appears difficult to square the concept of a court-ordered restitution of conjugal rights, enforced by attachment of property in case of disobedience, with the right to be left alone and to make one’s personal choices. In fact, a challenge to a husband’s request for restitution of conjugal rights was recently made in the Supreme Court by a wife, relying on the right to privacy judgment and her right to be left alone, though it was rejected as a premature challenge based on the facts of the case.

 

Indirect discrimination

 

The next attack on the validity of restitution of conjugal rights was rendered by Navtej Johar v. Union of India (the Section 377 judgment). A major argument relied on by the proponents of restitution of conjugal rights is that the provision cannot be discriminatory towards women since the remedy is equally available to both the husband and the wife. The Andhra Pradesh High Court in T Sareetha v T Venkatasubbaiah sought to defeat this argument as early as 1983, by holding that social reality meant that the remedy of restitution of conjugal rights was largely used as an “engine of oppression to be operated by the husband for the benefit of the husband against the wife”.  Considering this remedy as a form of indirect discrimination against women, the Court struck down Section 9 of the Hindu Marriage Act as unconstitutional. Unfortunately, this path-breaking judgment was overturned by the Supreme Court in short measure, in Saroj Rani v. Sudarshan, without the Supreme Court substantively considering the equality considerations raised in Sareetha.

This outmoded notion which prioritises the so-called sanctity of marriage over individual rights and freedoms, particularly those of the wife, is in keeping with Indian societal and jurisprudential tradition, which has long been loath to concede that fundamental rights apply within the home

The doctrine of indirect discrimination expressed in Sareetha (wherein a gender-neutral law which operates to have a disparate impact on a particular group can be found unconstitutional) has been slowly gaining favour in constitutional equality jurisprudence, most recently in Navtej Johar. Justice Chandrachud’s concurring opinion in Navtej Johar explicitly holds that Section 377, though facially neutral in its application to certain acts, targets specific communities in terms of impact. As such, an action which has the effect of imposing burdens or disadvantages on a specific class violates the constitutional rights to equality and non-discrimination. As recognised in Sareetha, the remedy of restitution of conjugal rights in effect disadvantages women. It has in the past, been used by Courts to deny women the right to take up employment of their choice in places away from their marital homes. It is consistently used by husbands to avoid claims of maintenance filed by the wife. Crucially, in India’s current patriarchal society where violence against women is rampant, especially within the confines of the family, a judicial decree requiring an unwilling woman to live with her husband leaves her vulnerable to unwanted sexual intercourse. Or, as expressed by a legislator opposing the concept during the parliamentary debates preceding the passage of the Hindu Marriage Act in 1955, it shockingly makes the government [and the court] “abettors in a form of legalised rape”.

 

Introducing constitutional rights into a marriage 

 

The Supreme Court’s recent decision in Joseph Shine struck down the criminal offence of adultery as unconstitutional under Articles 14 and 15 of the Constitution. The Court found that Section 497 IPC, which contains an exception to the criminal offence if there is consent or connivance of the husband, treats the woman as chattel or property of the man. Importantly, the court has finally found the courage to cast aside arguments that the crime of adultery is required to preserve the sanctity of the marriage, to which logic it had succumbed in previous judgments on adultery. Justice Rohinton Fali Nariman rightly concluded that “it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband.”

This brings to the fore the similarities to restitution of conjugal rights which has been historically defended for performing the function of preserving marriage. However, proponents have failed to show what effect such court orders really have in making a marriage last – it boggles the imagination how a court-mandated order enforced with threat of attachment of property for a husband and wife to live together can re-kindle lasting love and fix an unhappy marriage. In reality, restitution of conjugal rights is more often used as a route to divorce, or like the adultery provision is a use of the law to enforce a husband’s “proprietary right” over his wife.

The doctrine of indirect discrimination expressed in Sareetha (wherein a gender-neutral law which operates to have a disparate impact on a particular group can be found unconstitutional) has been slowly gaining favour in constitutional equality jurisprudence, most recently in Navtej Johar

The adultery judgment further stressed on the fact that Section 497 deprived married women of their agency, autonomy and dignity. Justice Chandrachud’s concurring opinion emphatically notes that “[s]haring of physical intimacies is a reflection of choice. In allowing individuals to make those choices in a consensual sphere, the Constitution acknowledges that even in the most private of zones [marriage], the individual must have the ability to make essential decisions”. He also states that the notion “[t]hat a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity.”

The Court’s observations in Joseph Shine can directly apply to the concept of restitution of conjugal rights, which considers cohabitation and consequently sexual intercourse as a marital right or entitlement. The common refuge taken by courts in this regard is that an order for restitution of conjugal rights only requires cohabitation but cannot mandate sexual intercourse. This is far removed from reality. As Justice Chandrachud puts it in relation to section 497, the law must be examined in the context of “existing social structures which enforce the position of a woman as an unequal participant in a marriage”. Indian law, by its refusal to criminalize marital rape, shields a husband who subjects his wife to non-consensual sexual intercourse. Placed in the context of a patriarchal family where a woman is legally deprived of sexual autonomy and choice, a court ordered requirement for a woman to cohabit with her husband takes away her right to make essential decisions relating to her bodily integrity and physical autonomy (both sexual and otherwise), which the Court in Joseph Shine has expressly considered unconstitutional.

The Court’s observations in Joseph Shine can directly apply to the concept of restitution of conjugal rights, which considers cohabitation and consequently sexual intercourse as a marital right or entitlement. The common refuge taken by courts in this regard is that an order for restitution of conjugal rights only requires cohabitation but cannot mandate sexual intercourse. This is far removed from reality

The Court’s recent willingness to strike down discriminatory religious practices as seen in the triple talaq and Sabarimala cases raises the hope that the Indian constitutional regime no longer considers the introduction of constitutional law in the home as akin to “introducing a bull in a china shop” as one Delhi High Court judge had put it. The Supreme Court’s equality jurisprudence now needs to be extended and applied towards existing patriarchal structures within the home and the family. And what better place to start that the antiquated notion of restitution of conjugal rights where the courts are directly complicit in upholding and perpetuating patriarchy. Like Sections 497 and 377 of the IPC, it must be thrown into the dustbin of history.

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