AN ANALYSIS OF THE RESTITUTION OF CONJUGAL RIGHTS UNDER THE PERSONAL LAWS by - Tinashree A N Chowdary

An Analysis of the Restitution of Conjugal Rights under the Personal Laws

Authored by - Tinashree A N Chowdary

Abstract

Humans have evolved from ancient civilisations to the world we live in today. They have formed social groups and believed in the institution of marriage for a stable social structure. The institution of marriage has developed from primitive times, but in the recent era, it is closely associated and affiliated with religious connotations and absurd societal norms. The institution of marriage is a voluntary union between the parties to the marriage. It ought to remain the same throughout, but the provision of restitution of conjugal right in the personal laws forces the parties to a marriage to cohabit with each other against their will, thereby violating an individual’s autonomy over their body and stripes a person of their right to decide.

This provision further catalysts the social stigma of separation in marriage and entrusts the parties to a marriage with bodily control over each other. Every other field of law is developing and progressing with time. In contrast, the personal laws in India have remained stringent with no scope to develop and catch up with the changing times but are tolerated by the people due to societal norms and pressures. The paper aims to conduct a legal analysis of the provision of restitution of conjugal rights in the country’s personal law and provide a jurisprudential outlook. This study uses the doctrinal research method to gather information through existing statutes and judicial decisions. Further, the paper dwells on the possible alternative as an effective solution to better the position of estranged spouses. 

Keywords: restitution of conjugal rights, forced, marriage, autonomy, privacy

Introduction

The Constitution of India guarantees every citizen of the country a life of dignity which is worth living without any discrimination; despite this assurance, various laws in our country suffer from inconsistency. In India, religious practices, customs, and traditions are given utmost preference and have been imbibed into personal laws. Hence these laws are derived from religious scriptures rather than the State. Personal laws in India govern subject matters related to the family, such as marriage, divorce, maintenance, succession, inheritance etc., which are considered private matters of an individual. Matrimonial remedy of Restitution of conjugal rights is one of the affairs dealt with in personal laws that has been under scrutiny recently for being violative of Arts. 14, 19 and 21 of the Constitution as it allows the state to interfere with an individual’s right to decide and                             privacy. Restitution of conjugal rights laid down in the Hindu Marriage Act, 1955, Special Marriage Act, 1954, Christian Marriage and Divorce Act, 1957 and Parsi Marriage and Divorce Act, 1936 govern different religious communities. These provisions lawfully compel a spouse to cohabit in the matrimonial home against their will, thereby considering the spouses in marriage as having control over each other, resulting in a violation of self-autonomy over a person’s body and the privacy of an individual.

Nature of Marriage

According to the ancient Hindu religious scripture, marriage is a sacrament where a man and woman are bound to perform social, religious and spiritual duties in an indissoluble union. Further, Manu smriti declares mutual fidelity between the husband and the wife and the notion of a unity of personality in a marriage.[1] Similarly, Christian marriage and Parsi marriage are considered to be sacred and holy unions which should remain unbroken in the lifetime of the spouse. The concept of restitution of conjugal rights owed its origin to ancient practices when the concept of marriage was based on the proprietary rights of the husband.[2] The wife was considered her husband’s property and was, therefore, required to live at all times in the home provided by the husband. If she refused to do so or ran, she could be compelled to live with him in a manner where the husband had absolute control over the wife’s body.[3] The restitution of conjugal rights as a formal matrimonial remedy was a Jewish law adopted in the English Common Law, which was introduced in the Indian laws by the British Raj.[4] The introduction of restitution of conjugal rights into the personal law by the British, coupled with the ancient Indian practice of women being viewed as the property of men, gave way to the foundation of a matrimonial remedy so strong that it has not been uprooted to date.

Laws and their Judicial Interpretation

The law provides for the restoration of conjugal rights between the spouses in case one of them is not fulfilling their marital duties towards the other. The restitution of conjugal rights is provided in Sec. 9 of the Hindu Marriage Act, 1955, Sec.22 of the Special Marriage Act, 1954, Sec.98 of the Christian Marriage and Divorce Act, 1957 and Sec.36 of Parsi Marriage and Divorce Act, 1936. In ancient times only the husband could enforce a right against his wife as the wife was considered a mere property of the husband, but with time law recognised the enforcement of conjugal rights against both the spouse, the husband or the wife. But providing for the restitution of conjugal right to the wife against her husband does not mitigate the problem of a spouse having control over the other to the extent where they can force the other spouse to live with them.

The legal definition of restitution of conjugal rights has been similarly defined in various legislation,

“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 with 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.”[5]

This provision has viewed marriage in a narrow scope concerning the interpretation of the phrases “without reasonable excuse” and “withdrawn from the society of the other”. Firstly, in most cases, it has been a trend in the judiciary that “reasonable excuse” by one spouse can be only if the other spouse has subjected them to cruelty or is involved in an adulterous relationship. Only under those circumstances can the court deny the grant of restitution of conjugal rights. Secondly, the word “society” or “matrimonial society” has not been explicitly mentioned in any legislation. It refers to the house where the husband and wife live together,[6] and withdrawal from such matrimonial society does not just refer to not living in the same house but withdrawal from other marital obligations such as sexual relationships, conjugal commitments, the intention of abandonment while living in the matrimonial house.[7]

The judiciary has time and again decided on the restitution of conjugal rights cases and has given various interpretations and justification for the state interference in a private and intimate matter such as marriage and its intricacies. The Punjab High Court in Tiranth Kaur v Kartar Singh[8], while hearing a suit for restitution of conjugal rights filed by the husband, held that the wife's first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection. In Smt. Kailash Wati v. Ayodhia Prakash[9], the Punjab and Haryana High Court held that where a wife, against the wishes of her husband, accepts employment away from the matrimonial home and unilaterally withdraws from that place, she would be violating the mutual obligation of husband and wife.[10]

Although the approach of the judiciary has changed where a wife living away from her husband for employment is no longer a ground to seek restitution of conjugal rights, the courts have refrained from taking a liberal approach and require the wife to justify her living away from her husband for employment either because of economic compulsion or with the husband’s consent.[11] Despite the societal construct and the absurd notion compelling a wife and husband to live together against their will, a milestone was achieved with the T.Sareetha v. T. Venkata Subbaiah case. In this case, the High Court of Andhra Pradesh struck down sec.9 of the Hindu Marriage Act, 1955 as being violative of Arts. 14, 19 and 21. The High Court held that the restitution of conjugal rights is a 'barbarous' and 'imported' remedy that is arbitrary and does not subserve any social good and good11. Justice Chowdhary further observed that restitution of conjugal rights enables forced sex accompanied by a forcible loss of the precious right to decide.[12]

But the progressive view in T. Sareetha v. T. Venkata Subbaiah was disregarded and overruled by the Delhi High Court in the Harvinder Kaur v. Harmander Singh Choudhry. The court held that the object of the restitution decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in unity and preserve the marriage. Further, the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha[13] held that there are sufficient safeguards in Section 9 to prevent marriages from being a tyranny and held that a restitution of conjugal rights decree serves a social purpose as an aid to the prevention of break-up of a marriage.

The Delhi High Court and the Supreme Court in the Harvinder Kaur and Saroj Rani case, respectively, dealt with the issue of privacy while examining the constitutionality of restitution of conjugal rights and upheld the provision as privacy in marriage was understood as ‘marital privacy’ that is the collective privacy of the spouses in the marriage where the state could intervene. But the Andhra Pradesh High Court, in the Sareetha case, while dealing with the same subject matter, understood and examined privacy as the ‘individual privacy’ of each spouse in the marriage where the state should not intervene.[14]

Constitutional Validity

In the famous K.S Puttaswamy v. Union of India, the right to privacy was recognised as a fundamental right under Art.21 of the constitution as includes the core of it the “right to be alone” the court justified the right to privacy as a necessity in protecting an individual’s autonomy by preserving a person’s bodily integrity as well as autonomous decision-making capacity. In the decree of restitution of conjugal rights, the spouse who withdraws from matrimonial society is obligated to return to the matrimonial house and is compelled to fulfil the marital duties, including submission to sexual relation against their will. It would strip an individual of their autonomy and control over their body. It would, in turn, let the other spouse exercise control over the body and decisions of the said individual. Such an act by one of the spouses lawfully facilitated by the state is a gross violation of the right to privacy of the individual and ultra vires of the Constitution.

Restitution of conjugal rights can be enforced by both the husband and the wife against each other because it is not gender biased. It cannot be justified as not being discriminatory under Art.14 of the constitution. It is arbitrary and does not pass the reasonable test laid under Art.14 and is thereby violative. Further, it restricts individuals from choosing and making decisions for themself on the subject of bodily autonomy and sexual expression, violating Art.19 of the constitution. As per the golden triangle jurisprudence established in the landmark case of Maneka Gandhi v. Union of India[15], laws affecting the individual's personal liberty are violative of all three articles, namely Art 14, Art 19 and Art 21 of the Constitution, as they are interconnected. Since the provision of restitution of conjugal rights violates the individual’s personal liberty, it is evident that it violates the constitution.

Jurisprudential Analysis

The concept of restitution of conjugal rights can be analysed jurisprudentially with respect to possession. Possession of something requires a corpus and animus possidendi, which means exerting control over the thing and intending to exclude others. A marriage between two parties in itself brings in the animus possidendi, where the marital obligations are to be performed exclusively towards each other, and any third party is excluded from it. The element of the corpus in a marriage would be the enforcement of control over each other, where the spouse can decide and control the body of the other. The restitution of conjugal rights allows such control to be exercised on the other spouse by compelling them to return to the matrimonial home and decide where the spouse must live.

Generally, a person can exercise possession even without having ownership over something[16], a person cannot own another person as persons have their legal status. But considering the nature of marriage in India and the concept of unity in personality after marriage, it allows for spouses to  be viewed as possessing each other as they fulfil the element of possession under jurisprudence. Further, through a decree of restitution, the court can compel a person to return to the matrimonial house, which would inherently give the party that has filed for restitution a possessory right over the other spouse and claim to return their possession. The enforcement of restitution would infer that persons are reduced to mere objects with respect to each other in the institution of marriage as they have control over the other, even against their will and consent.

Effects of a Restitution Decree

The judgement of the Andhra Pradesh High Court in the Sareetha case was significant as it aimed at breaking the societal taboo and recognised the right to live with dignity in marriage, and stressed an individual's happiness and the woman’s right to decide when and with whom she wants to live. But this progressive precedent in the judiciary was overruled, and the courts failed to reflect on the effects of a restitution decree on the parties to the marriage. In upholding the remedy, in the Saroj Rani case, the Supreme Court ignored that, under the threat of judicial and social pressure and financial sanctions, a spouse may well be forced to go back to the matrimonial home and, because of the spouse, especially woman’s vulnerable position in it, be forced to have sex and live a life of misery in an atmosphere.[17] The subsequent judgments are regressive as they overlook that marriage is supposed to be a voluntary union, and the state cannot force two people to remain married.

Way Forward

Many western and European countries have abolished laws related to the restitution of conjugal rights for being unconstitutional and violative of individuals' right to privacy as the parties would be forced to stay together.[18] It is time for our legislation and judiciary to reconsider a law that serves the age-old notion towards the approach of marriage and strives to be the instrument of change by upholding the rights of individuals in the institution of marriage. The intent of restitution of conjugal rights is to preserve marriage. This can still be achieved through arbitration in which parties to the marriage are given a fair opportunity to communicate their reasons which shall not be disregarded for not being reasonable enough. An individual’s reason to withdraw from their spouse’s companionship is a private affair that the state should not scrutinise, nor should the individual be burdened with justifying such a reason. The provision of restitution of conjugal rights in the personal laws should be set aside by the judiciary and the legislation owing to the violation of the constitution.

Conclusion

The law of restitution of conjugal rights in writing is not gender bias, but women mostly face the brunt of this colonial concept as they remain vulnerable. The old-school notion of marriage being a holy union and a sacrament has heavily dictated marital relationships and Indian families for years, where couples remain in an unhappy marriage because of the stigma and the taboo around separation. The law reinforces this by providing the restitution of conjugal rights in various marriage laws and deepening the root of the existing social norms. Restitution of conjugal rights as a matrimonial remedy reduces an individual’s personal identity as a mere spouse of another in the marriage. It lets the other spouse in the marriage exercise bodily control over the individual, thereby treating them as objects over which possession is exercised.

In India, the state actively inferences into private matters of family and marriage through a decree of restitution of conjugal right, thereby forcing a spouse to return to the matrimonial house against their will, but on the other hand, outright refuses to interfere on the subject of marital rape as it would disrupt the families and societal structure of the country which seems to contradict one another. As our country progresses in all aspects of law, it is of utmost importance to re-examine our personal laws and priorities of an individual’s fundamental rights guaranteed by the state rather than succumbing to the social norms that reduce one’s self-autonomy and identity.

[1] Manu, IX, 101-102.

[2] PARAS DIWAN, MODERN HINDU LAW 191 (2020).

[3] Id.

[4] Manan Katyal, Constitutionality of Restitution of Conjugal Rights under Hindu Marriage Act, 1955, iPleaders, (2018), https://blog.ipleaders.in/constitutionality-of-restitution-of-conjugal-rights-under-hindu-marriage-act-1955/

[5] Hindu Marriage Act, 1955, § 9, No. 25, Acts of Parliament, 1955 (India).

[6] Black Law Dictionary 7th Edition 1999

[7] Amrita Atul Deshmukh, Constitutional Validity and Ethicalness of Restitution of Conjugal Rights in India, PENACCLAIMS, (Apr. 22, 2022, 11:15 PM), http://www.penacclaims.com/wp-content/uploads/2018/12/Amrita- Deshmukh.pdf

[8] Tiranth Kaur v, Kartar Singh, AIR 1964 Punj. 2.

[9] Smt. Kailash Wati v. Ayodhia Prakash, 0. (1977) 79 PLR 216 (FB).

[10] Kusum, Wife's Employment or husband's Conjugal Rights: who has the say?, Vol. 45, JOURNAL OF THE INDIAN LAW INSTITUTE , 97, 101-102 (2003).

[11] Id.

[12] T.Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356.

[13] Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90.

[14] Saptarshi mandal, ‘Right to Privacy’ in Naz Foundation: A Counter-Heteronormative Critique, NUJS LAW REVIEW, 525, 530 (2009).

[15] Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.

[16] G W PATON, A TEXBOOK OF JURISPRUDENCE, 561, Oxford University Press (2004).

[17] Kirti Singh, Obstacles to Womenʹs Rights in India, NATIONAL AND INTERNATIONAL PERSPECTIVES UNIVERSITY OF PENNSYLVANIA PRESS, 375, 388 (2021).

[18] Arsheya Chaudhry, Restitution of Conjugal Rights – An Analysis, VOLUME 7 ISSUE 6, JOURNAL ON CONTEMPORARY ISSUES OF LAW, 323, 346.