Restitution of conjugal rights disproportionately impacts wife through potential marital rape, life disruption, denial of job and so on
Editor’s Note: This story was first published on 3 February 2022 and is being republished in light of the recent Karnataka High Court ruling that could help shape the debate on marital rape, which said that ‘rape is a rape, be it performed by a man or the ‘husband’ on the woman ‘wife’
Restitution of conjugal rights has assumed significance in the light of the debate on criminalisation of marital rape in India, which has brought attention to issues in family law, one of them being the restitution of conjugal rights which has been challenged in the Supreme Court.
Notably, the debate on constitutionality of restitution of conjugal rights was settled by the Supreme Court long ago in 1984. However, recent judicial pronouncements have transformed our understanding of privacy, equality and constitutional principles and hence have a great bearing upon restitution of conjugal rights.
Restitution of conjugal rights: Its contours
When either of the spouses has withdrawn living with the other spouse without any ‘fault’ of the other spouse, the other spouse can approach the court to order the other spouse to cohabit. This is restitution of conjugal rights and is codified under Section 9 of Hindu Marriage Act, 1955.
Here, ‘fault’ refers to acts of the spouses that may be a ground for dissolution of marriage, e.g. adultery, or economic hardship etc. This stems from the understanding of the Hindu marriage as indissoluble in the absence of any ‘fault’ of either spouse. On this basis, it is not open for either spouse to unilaterally withdraw cohabitation with the other. In opinion of Derrett, also confirmed by the Supreme Court, restitution of conjugal rights is primarily aimed at sorting out ‘misunderstandings’ between spouses.
Socio-cultural changes: Then and now
The British interfered with personal laws of Hindus and introduced restitution of conjugal rights. Interestingly, the United Kingdom in 1970 appreciated the futility and ineffectiveness of restitution of conjugal rights and it has been repealed since then in the UK.
The house of husband was meant to be matrimonial home where the wife was to reside. This is no longer true in the modern world where wives take up jobs and is seen as an independent individual. Further, restitution of conjugal rights was deemed necessary in a Hindu marriage set-up where marriage was an indissoluble sacrament.
This is no longer true as divorce is now available to Hindu spouses.
There was subordination of wives to private domain. Since wife was subordinate to husband, her access to “public”, if any, was regulated by the husband. Thus, wife was effectively ‘chattel’ of the husband. Wives now take up jobs and access public sphere as well. Remedy of restitution of conjugal rights represents a notion of marriage according to which the wife was a chattel of the husband as his other possessions.
This opinion of wife as chattel of husband has been declared to be unconstitutional in Joseph Shine v. Union of India by the Supreme Court.
Ineffectiveness and undesirability
Remedy of restitution of conjugal rights has been deemed to be perverse since very long time. In Russell v. Russell, Sir Hannen observed that, “I have not once known a restitution petition to be genuine, that these were merely a convenient device either to enforce a money demand or to obtain divorce.” In Indian context, as revealed from a survey of cases from 1954 to 1969, it has primarily been used to facilitate divorce otherwise not easy to obtain, to obstruct wife’s claim to maintenance.
Trend shows restitution of conjugal rights is used to deny wife’s right to employment at a place away from matrimonial home. This is because of the socio-cultural changes brought in a constitutional era has provided better education and job opportunities to women. While women’s aspiration has been readily accepted for the jobs taken in vicinity to matrimonial home, it has been allowed as an exception only in a limited circumstance where the job is taken by wife at a far place from matrimonial home and she ordinarily does not reside at the matrimonial home.
Restitution of conjugal rights is highly undesirable because it disproportionately impacts wife by potentially risking her to marital rape and depriving her of right to employment at her choice of location. Her rights are subject to ‘consent’ of husband. On the other hand, no such limitation is husband because he is the ‘bread-winner’ in marriage.
Restitution of conjugal rights can also be a means to forced marital rape. This concern was also raised in the Parliament during the enactment of the Hindu Marriage Act, 1955. However, the then Law Minister pointed that restitution of conjugal rights had no enforcement mechanism and hence not a real danger. It is submitted that procedural laws do have the mechanism for enforcement of the restitution of conjugal rights decree. Per Order XXI Rule 32 of the Code of Civil Procedure, 1908, if restitution of conjugal rights order is wilfully disobeyed, property can be attached.
This threat was adequately recognised by the Andhra Pradesh High Court in T. Sareetha v. T. Venkatasubbaiah. However, this was rejected by the Supreme Court as it was held that the decree provided for cohabitation and not forced sex where anyway the Court cannot enforce its decree. However, the court missed the point that in such forced cohabitation setting, there is nothing to stop marital rape and in fact it is a real dangerous possibility.
Constitutionality of restitution of conjugal rights
It is noteworthy that the debate on constitutionality of restitution of conjugal rights was settled by the Supreme Court in Saroj Rani case. However, the recent changes in law has transformed our understanding. The Supreme Court in Saroj Rani held that constitutional law principles were inapplicable to marriage. However, this is no longer true in recent times. The Supreme Court has applied constitutional principles and tested provisions on its touchstone in Shayaro Bano v. Union of India and also in Joseph Shine v. Union of India.
Further, the Supreme Court has also held that right to make decisions on vital matters concerning one’s life are inviolable aspects of human personality. In this regard, marriage is a very vital matter concerning human personality. We have moved from the understanding of equality to substantive equality from formal equality.
It has been held that substantive equality requires the court to look into law beyond its mere form and realise its real impact and dynamics of the structure to which it applies.
Conclusion
Restitution of conjugal rights has outlived its founding rationale as it was aimed at enforcing subordination of wife to husband and “public-private” divide; prevent breakdown of marriage where marriage was indissoluble. However, divorce is now permissible to spouses and wife is to be equal to husband and no longer to remain in private space or be subordinated to husband. Restitution of conjugal rights disproportionately impacts wife through potential marital rape, life disruption, denial of job and so on.
These aspects are highly undesirable in a society aiming to establish constitutional vision of social transformation and equality and by that extension, restitution of conjugal rights is undesirable.
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