Plea on conjugal rights pending for months in Supreme Court

• A petition questioning a law that forces a woman to return to her husband and denies her sexual autonomy has been pending in the Supreme Court for months without a hearing.
• The petition, titled Ojaswa Pathak versus Union of India, was filed in the Supreme Court in February 2019. The case was last heard on July 8, 2021. It was next posted for July 22, 2021.

Marriage

• Recognized formal and legal union of two people as partners in a personal relationship.    
• A social institution having legal, economic, cultural, and religious ramifications. 
• Norms and legitimacy of a marriage : matrimonial laws, prevailing social norms, and religious dictates. 
• Matrimonial laws : marriage is a union imposing certain marital duties and giving legal rights to each spouse.

Conjugal rights 

• Rights and privileges in a marriage, among a married couple. 
• Includes intimate rights - mutual relationship of comfort, companionship, affection, and sexual relations. 
• Key ingredients:   1. Cohabitation.  2. Sexual intercourse. 
• Legally enforceable.

Restitution of Conjugal Right 

• Through a decree by a court of law. 
• Reason - withdrawing from society of the other, without any valid reason. 

1. Spouses not cohabiting 
2. Denial of any sexual relations. 
3. Not fulfilling marital obligations. 

• Court can order the husband/wife to joinback his/her family - to cohabit or take part in sexual intercourse.
• Relevant provisions : 

1. Hindu Marriage Act,1955 - Section 9. 
2. Indian Divorce Act,1869 - Section 32 and 33. 
3. Parsi Marriage and DivorceAct,1936 - Section36. 
4. Special Marriage Act - Section 22.

• Gender neutral under Indian matrimonial laws.

THE HINDU MARRIAGE ACT, 1955 

• Restitution of conjugal right - When either the husband or the wife has,without reasonable excuse,withdrawn from the society of the other,the aggrieved party may apply, by petition to the district court,for restitution of conjugal rights and the court, on being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 of 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. 
• Explanation - Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

THE SPECIAL MARRIAGE ACT, 1954 

• Restitution Conjugal Rights - 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 of 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. 
• Explanation - Where a question arises whether there has been reasonable excuse for withdrawal from the society,the burden of providing reasonable excuse shall be on the person who has withdrawn from the society.

THE DIVORCE ACT, 1869 

• Petition for restitution of conjugal rights : When either the husband or the wife has,without reasonable excuse,withdrawn from the society of the other,either wife, or husband may apply,by petition to the District Court  for restitution of conjugal rights,and the Court,on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application shouldnot be granted,may decree restitution of conjugal rights accordingly.

THE PARSI MARRIAGE AND DIVORCE ACT, 1936 

• Suit for restitution of conjugal rights - Where a husband shall have deserted or without lawful cause ceased to cohabit with his wife,or where a wife shall have deserted or without lawful cause ceased to cohabit with her husband,the party so deserted or with whom cohabitation shall have so ceased may sue for the restitution of his or her conjugal rights and the Court,if satisfied of the truth of the allegations contained in the plaint,and that there is no just ground why relief should not be granted,may proceed to decree such restitution of conjugal rights accordingly.

Issue - provision used against women.   

1. When they concentrate on career. 
2. When they want sexual autonomy, privacy and individual dignity. 
3. Provision places disproportionate burden on women. 

Reason for targeting women

1. Patriarchal notion of marriage.

• Restitution of conjugal rights has roots in English law - when marriage was considered as a property deal and wife was considered a part of man’s possession.
• Patriarchal arguments by Courts in favour of Restitution of conjugal rights provision:  Women should be like Sita and follow their husbands everywhere  a women's focus on their careers is a neglect of their household responsibilities.
• A wife's first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection.

Abolition of restitution of conjugal right 

• Basis - no validity in the modern life women educated and contributing to family income like men. 
• Suggested by 

1. Some courts. 
2. 2015 - Report of High Level Committee on Status of Women, Ministry of Women & Child Development.
3. 2018 - Report on Consultation on family law reforms in India of India.