A two-judge bench of the Supreme Court of India comprising Chief Justice of India (CJI) Ranjan Gogoi and Justice Sanjiv Khanna today referred to a three-judge bench, 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 addition, the constitutional validity of Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908 has also been challenged by the petitioners, Mayank Gupta and Ojaswa Pathak.
The petition will be listed for hearing next week.
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“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.
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 petitioners.
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 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 recognized 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