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RESTITUTION OF CONJUGAL RIGHT: A THREAT TO FUNDAMENTAL RIGHTS

Updated: May 4

Author: Gautam Kumar, II year of B.A.,LL.B.(Hons.) from ICFAI Law School, Hyderabad.

Co-author: P.Samay Kumar, II year of B.B.A.,LL.B.(Hons.) from ICFAI Law School, Hyderabad.


Marriage is a sacramental union, any two male and female can live together as husband and life, provided they should not be in a prohibited degree of relationship and should have followed the ceremonies in place. It is considered as a Sanskar as the union of marriage performs religious duties, it is a permanent union which cannot be dissolved, at the same time marriage is an eternal union according to which union formed through marriage shall continue for the rest of the life as per the Hindu mythology. As marriage is a sanskar where in no way it can be interpreted that marriage means regulation of sex life, marriage in no way indicative of procreation of children only and marriage in no way direct the way to have forceful sex with the partner. Regulation of sexual life, procreation of child is a part of marriage but not the whole

What is Restitution of Conjugal Rights?

Restitution of Conjugal Rights is a decree which is passed by a court to order the guilty party to live with the aggrieved party. It is passed when either of the spouses withdraws from the society, without adequate excuse. It is defined in Section 9 of the Hindu Marriage Act, 1955

The Essentials are:

1. Withdrawal from the community.

2. The withdrawal shall be without rational cause, excuse or legitimate reason.

3. No other legal grounds for denying relief should exist.

4. The court must be satisfied with the reality of the statement made in the petition.

The origin of the concept of restitution of conjugal rights can be found in the ancient days when women were treated as the property of men, and marriage was based on the Proprietary Rights of the husband. In those days women were treated as the personal property of the husband and if the wife disagrees to live with his husband, then she could be compelled with him, almost the same way as a Cow that ran away from a master's shed could be brought back and tied to its post.

Jurists and sociologists are of the view that the concept of RCR is most inhuman and obnoxious. England, the country from whom we borrowed the concept, has already abolished this remedy but whether we should be going on the same lines is open to further debate and analysis. The subsection of section 9 of the Hindu Marriage Act, which was in controversy among High Courts, was amended by The Marriage Laws (Amendment) Act, 1976. The amendments to sec 9 run as under: 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 courts, on being satisfied with the truth of the statement made in such petition and that is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly[1].


Main Purpose of the Law

The main purpose of the law is to maintain order in the Society, Establish Standards, Resolve Disputes and protect the liberties and rights of an individual. But in the case of RCR, it violates the basic purpose of the law.[2] RCR implies that when the decree is passed by the court then the guilty party is coerced by the state to live with the aggrieved party, whether the guilty party wants to live with the aggrieved party or not is a matter of no consideration.

Why is there a debate?

It is clear from the statute that the remedy of Restitution of conjugal rights is available to both husband and wife, it is gender-neutral but it is very necessary to see this to see the provision from the practical point of view. Our society is patriarchal, today also men enjoy superiority over women. For all basic needs like food, clothing, shelter, finance etc. women are dependent on men. Even though she does not want to live with the person she has to go to. RCR violates the right to equality and the right to life. Equality implies equality of thought, equality of action, equality of realization.

How it violates Fundamental Rights?

The concept of Restitution of Conjugal Rights mentioned in section 9 of the Hindu marriage acts, was declared violative of Article 21 and Article 14 of the Indian constitution 1950, by the Andhra Pradesh High court. Later on, the same case was put forth before the hon’ble High court of Delhi and subsequently to the Supreme court. They are of the view that the main aim of section 9 of the Hindu Marriage Act was to create Co-existence between the spouses. Although the right to privacy is not expressly guaranteed under Article 21 of the Indian constitution, in the case of Govind vs. State of MP[3], Justice Mathew observed that the right to privacy is a fundamental right under Article 21 of the constitution. Now it is a personal matter to a person to allow others to pop into the privacy of an individual. Persons have the right to set a personal limit, they are competent to keep secrets to all those sensitive matters which a person has a view that the same matter if revealed may dissolve the person’s individuality. But the decree of RCR coercion the guilty party to allow the complainant to enter into the personal space against the wish of the guilty party. Therefore, the concept of RCR violets the fundamental right guaranteed under Article 21 and Article 14 of the constitution.

Why don't we need RCR?

In common parlance decree of RCR gives unwanted pregnancy, as we know that the main aim of the concept of RCR is Cohabitation and consortium and not merely sexual intercourse, but it is not practical for people to accept cohabitation without sexual intercourse till the person is a saint or spiritual Guru. It undermines the feelings, personal satisfaction and choice of living of the women.


Another aspect of RCR is that the concept is used to deceive the court by the petitioner. The main motive of the concept of RCR is the reconciliation, Cohabitation and consortium between husband and wife but the same is used by the petitioner to form an opportunity for divorce, as we know that once the decree of RCR is passed by the court then failing to comply with the dree for 1 year constitutes a grounds for a divorce. Therefore, it can be wrong to say that the ulterior motive of the petitioner behind the decree of RCR is from the non-compliance of the decree as the ground for divorce under section 13 (1)A of the Hindu Marriage Act, 1955.[4]

Conclusion

The authors are of the view that, Although section 9 of the Hindu Marriage Act is gender-neutral still the vulnerable victims remained the same from ancient time to the present time. The concept of RCR has not adhered to its motive that is Reconciliation, Cohabitation and Consortium between the husband and wife. Nowadays petitioners are using the remedy to satisfy their mala fide motive. It would not be incorrect to say that the concept is doing more harm than good to the public at large. section 9 of The Hindu Marriage Act, violates the right of privacy and human dignity guaranteed by article 21 of the constitution and the right of equality which is guaranteed under Article 14 of the constitution. In the case of T.Sareetha vs T.Venkata Subbaiah, justice P.A Chaudhary held that “A decree for restitution of Conjugal rights constitutes the grossest form of violation of an individual’s right to privacy. It denies the women her free choice whether Women and how her body is to become the vehicle for the procreation of other human beings. State coercion of this nature can neither Prolong nor Preserve the voluntary union of the husband and the wife in matrimony. Neither can state coercion soften the ruffled feelings nor clear the misunderstanding between the Parties.” The learned judge further added that “section 9 did not Promote any legitimate Public Purpose based on any concept of public good, and thus being arbitrary was violative of Article 14 of the constitution[5]. Therefore section 9 of the Hindu marriage act should be abolished with immediate effect.”


[1] Paras Diwan, Modern Hindu Law 191-192 (Allahabad Law Agency 2019)

[2] Lawcorner, What Are The Purposes And Functions Of Law? | Law Corner(last visited April 15, 2021).

[3] Govinda vs State of MP, 1975 AIR 1378, !975 SCR(3) 946

[4] Ayush Raina, Constitutional Validity of Restitution of Conjugal Rights, ccrd.vidhiaagaz.com (last visited 15 April 2021)

[5]T. Sareetha vs T. Venkat Subbaih, AIR 1983 AP 356.


Authors' Bio

1. Gautam Kumar hails from Ranchi, Jharkhand. a second-year student of B.A.LLB(Hons). He hopes to blend academic skills, experience and innovation to achieve the best in the workplace. He Is quite inquisitive and always tries to learn. He aspires to become an Administrative Officer.


2. Samay is an II-year student of BBA-LL.B (Hons.). He is an avid writer and speaker. He has a passion for researching emerging trends in society and hopes to change the same for the better.