CONSTITUTIONAL VALIDITY OF RESTITUTION OF CONJUGAL RIGHTS
RESTITUTION OF CONJUGAL RIGHTS
Author : Priya Sharma of IMS Unison University, Dehradun
INTRODUCTION:-
Conjugal rights mean or give the right to stay together. Hindu marriage act, 1955 under section 9 it is mentioned that either the wife or the husband, without any reasonable excuses, withdraws from the society of the other, in that case the aggrieved party may approach the court for restitution of conjugal rights.
The aim of the restitution of conjugal rights and degree was only to encourage the marriage and again unite both husband and wife into the marriage. And it also prevents an unwilling women engaging in sexual intercourse with the husband.
The decree of restitution conjugal rights cannot be made applicable by forceful actions on the party who has gone away from the society and from the other party to live with the one who has filed petition for restitution.
MEANING:-
Husband and wife both the parties to marriage are bound by the law to keep their married life together and they both are entitled by law to enjoy the rights and fulfill the basic obligations following their solemnization of marriage.
The exasperate spouse may obtain matrimonial relief which is guaranteed under personal laws if either of the spouse deviate from the other for the reason that he or she can restore his/her status to other person shall subject to validation of certain facts.
If either of the spouses has withdrawn from the society without any excuse, then the exasperated group may request for the refund of marriage benefits. And if the court is fully satisfied by the reality made by either of the spouse (aggrieved) in such, the court request may restore the order.
Where and when the issue arises that whether the withdrawal made by either of spouse from the society is ethical, it is wholly the responsibility of the individual who has withdrawn from the society and he/she has to prove a decent excuse. In very often instances, even the issue occurs on the constitutionality of this clause.
WHAT ARE THE ESSENTIALS:-
This decree is the remedy to avoid separation in the marriage and is also a favorable solution for requiring the co-existence of both the sides to marriage.
- Withdrawal from the society.
- The withdrawal made shall not be without any rational excuse or litigation reason.
- No legal grounds for denying relief should exist.
- It is necessary that court must be satisfied by the statement made in the petition.
CONSTITUTIONALITY OF RESTITUTION OF CONJUGAL RIGHTS:-
Issue of constitutional validity under section 9 was raised in T Sareeta v. Venkatasubbiah, and in this case Andhra Pradesh High Court held that section 9 to be violative of the constitution but Justice Chaudhary held section 9 to be barbaric remedy and observed that section 9 is not based on conception of the general good and it does not serve any social good.
After the amendment of amending act 44 of 1964 both the parties either husband or wife is allowed to present petition on the ground given under section 13 (1-A)
In Saroj Rani v. Sudarshan Kumar Chadha in this case supreme court overruled the judgement where T Sareeta replying to Justice Rastogi in Harvinder Kaur. Here Justice Sabyasachi Mukarji held that section 9 of Hindu Marriage Act 1955 is legal as declared by the apex court and most the principles included in restitution of conjugal rights stands constitutional in the Indian legal system.
On the issue of Article 21 of the constitution court said that the only purpose of restitution of conjugal rights is ‘cohabitation’ between the parties to marriage and it does not enforce any sexual intercourse between husband and wife whosoever unwilling to do so.
The decree was passed only to encourage united marriage between husband and wife and to prevent women from engaging into sexual intercourse with the husband that is unwilling.
However the Supreme Court and the Delhi High did not realize that marital rape was legal in India where husband can force his wife to enter into intimate or sexual relationships with him without her wish, except the petition made for divorce that is based on cruelty or for domestic violence that is based on sexual violence.
The decree of restitution of conjugal rights puts married women under the pressure of forceful sex with her husband who hinders her physical autonomy, dignity, and the freedom to make her choices. (“Forced cohabitation” and “consortium”)
ARTICLE 14 OF THE CONSTITUTION:-
Both the husband and wife have the right to access a remedy for the restitution of conjugal rights. Restitution of conjugal rights violates article 14 of the constitution Right to equality, equality here means equality of thoughts, actions and self esteem.
The continuation of this remedy may leads to undesired pregnancies and arguments on the feeling, dignity, respect and personal satisfaction of the women. In the man dominated society mostly the advantages of different laws are enjoyed by men because of the dependence and ignorance. In the majority of instances the wife is put in unfavorable conditions.
ARTICLE 21 OF THE CONSTITUTION:-
Right to privacy Article 21 (right to life and personal liberty) article 21 is umbrella legislation. Privacy is something that deals with individual privacy.
In Govind v. state of MP, in this case court said that right to privacy is a fundamental right but according to its American counterpart it was included in the liberty clause. Here Justice Mathew observed that right to privacy must protect the personal intimacies of the family, husband and wife, procreation, and child rearing. In Kharak Singh v. state of UP in this case Justice Subba Rao said that any definition of privacy must enclose and protect the personal intimacies of the family, husband and wife, procreation, and child rearing.
