Petition on Conjugal Rights and its implications

Progressive approach to Conjugal Rights is under scanner in a SC petition

 Petition on Conjugal Rights and its implications

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• The story: A petition challenging the provision allowing recovery of conjugal (related to marriage) rights under Hindu Marriage Act, 1955 has been pending in the Supreme Court (S.C.) for months without a hearing. The petition, titled 'Ojaswa Pathak vs Union of India', was filed in the Supreme Court in February 2019. The case was last heard in July 2021.
• Key points: "Conjugal rights" are rights created by marriage, i.e. right of the husband or the wife. The law recognises these rights — both in personal laws dealing with marriage, divorce etc, and in criminal law requiring payment of maintenance and alimony to a spouse. The Section 9 of the Hindu Marriage Act 1955 and Section 22 of the Special Marriage Act 1954 empower a husband or a wife to move the local district court, complaining that the other partner has “withdrawn” from the marriage without a “reasonable cause”.

1. The concept of restitution of conjugal rights is codified in Hindu personal law now, but has colonial origins. Originating from Jewish law, the provision for restitution of conjugal rights reached India and other common law countries through British Rule.
2. The British law treated wives as their husband's personal possession hence they were not allowed to leave their husbands. Similar provisions exist in Muslim personal law as well as the Divorce Act, 1869, which governs Christian family law.
3. Incidentally, in 1970, the U.K repealed the law on restitution of conjugal rights. The laws are said to be biased against women as they are often called back to marital homes under the provision, and given that marital rape is not a crime, leaves them susceptible to such coerced cohabitation.
4. Some say that the SC judgements are not in consonance with the law. In the judgement of "Joseph Shine v Union of India 2019", the SC has put great emphasis on the right to privacy and bodily autonomy of married women.
5. The provision is also misused against women as a shield against divorce proceedings and alimony payments.

• Challenged provision: According to Section 9 of the Hindu Marriage Act, 1955,  either the husband or the wife may apply, by petition to the district court, if the other partner withdraws from the society without reasonable excuse. The law is being challenged now on the main grounds that it violates the fundamental right to privacy. In 2019, a nine-judge Bench of the SC recognised the right to privacy as a fundamental right.

1. The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
2. The 2019 judgement has set the stage for potential challenges to several laws such as criminalisation of homosexuality, marital rape, restitution of conjugal rights, the two-finger test in rape investigations.
3. The plea argues that a court-mandated restitution of conjugal rights amounted to a “coercive act” on the part of the state, which violates one’s sexual and decisional autonomy, and right to privacy and dignity.
4. It is also argued whether the state can have such a compelling interest in protecting the institution of marriage that it allows a legislation to enforce cohabitation of spouses.

• Summary: Marriage is not built upon the ceremonies but upon the autonomy and freedom of two individuals who agree to share them with each other. It is time for the Indian judiciary and society to shift to more progressive views starting with the progressive theory of marriage. The conservative view does not agree with this.
• EXAM QUESTIONS: (1) Describe with examples how Indian Judiciary has taken progressive approach on conjugal rights. (2) "Progressive approch to marriages alone will make a progressive society" - critically analyse.

#marriagerights #righttoprivacy #conjugalrights

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