The Restitution of Conjugal Rights in Indian Law violates the Right to Privacy

by | Jul 30, 2018

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About Anik Bhaduri

Anik Bhaduri is an undergraduate student at NALSAR University of Law, Hyderabad. He is interested in the intersection of international law and human rights law with commercial laws and economics.

Citations


Anik Bhaduri, ‘The Restitution of Conjugal Rights in Indian Law violates the Right to Privacy’ (OxHRH Blog, ) <https://ohrh.law.ox.ac.uk/the-restitution-of-conjugal-rights-in-indian-law-violates-the-right-to-privacy> [date of access].

In 1983, the Indian Supreme Court held that the right to privacy did not guarantee the autonomy of an individual over her own body, and so the restitution of conjugal rights under section 9 of the Hindu Marriage Act could not be said to be unconstitutional on the ground that it violated the right to privacy. However, taking into consideration recent developments in the law, it seems necessary to re-examine the issue.

In 1983, the Andhra Pradesh High Court struck down section 9 of the Hindu Marriage Act, which provided for the restitution of conjugal rights, as unconstitutional. Justice Choudary held that compelling a person to live with his/her spouse violated the right to privacy in the Indian Constitution. This decision was later rescinded by the Delhi High Court in Harmander Kaur v Harvinder Singh Choudhry and the judgment of the Delhi High Court was affirmed by the Supreme Court in Saroj Rani v Sudarshan Kumar Chadha. The fundamental issue at the heart of this debate has been whether the right to privacy extends to the home and marital relationships.

In the early case of Gobind v State of MP, the Supreme Court held that the right to privacy protects “the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing”. This definition seems to treat the home as a private space where the law could not interfere.

A different conception of privacy was adopted by the Andhra Pradesh High Court in T.Sareetha v Venkata Subbaiah when it held that “the right to privacy belongs to an individual…and is not lost by marital association”. The court observed that the enforcement of section 9 against an individual compelled her to have sexual relations with her spouse, thus depriving her of control over her body. This, according to the court, was a serious breach of the right to privacy as it transfers “the choice of whether or not to have marital intercourse to the State from the concerned individual”. Unfortunately, the Delhi High Court, in Harvinder Kaur v Harmander Singh Choudhry, reverted back to the narrow definition of privacy given in Gobind v State of MP and the Supreme Court affirmed this view.

However, last year in K.S. Puttuswamy v Union of India, the Supreme Court held that individuals have a right to privacy which grants them complete autonomy over their body. The Court has thus adopted the individualistic definition of privacy as argued by Justice Choudary in T.Sareetha v Venkata Subbaiah.

The Andhra Pradesh High Court had observed that the enforcement of a decree of section 9 compels a person to have sexual intercourse with her spouse, thus depriving her of control over her own body, but the Delhi High Court criticized this view and held that the impugned section aimed at “consortium” and not at “cohabitation”. “Consortium” has been defined as “companionship, love, affection, comfort, mutual services, sexual intercourse”. The Delhi High Court held that sexual relations are not the ultimate goal of a marriage and that restitution of conjugal rights aims only at compelling the parties to a marriage to live in the same household and does not compel them to have sexual intercourse.

However, taking into consideration the fact that marital rape is not an offence in India, compelling a woman to live with her husband takes away her right to choose whether or not to have sexual intercourse, as her husband can forcibly have sexual intercourse with her without legal sanction. Thus, even if section 9 of the Hindu Marriage Act does not make sexual intercourse compulsory, compelling a woman to stay with her husband in the matrimonial home puts her at risk of marital rape, depriving her of autonomy over her own body and thus violates her right to privacy.

With the gradual understanding that the law needs to intervene in family matters and protect the rights of individuals, restitution of conjugal rights has been criticized across common law jurisdictions, leading to its abolition in the UK, Australia, Ireland and South Africa. It is time that India, too, abolishes restitution of conjugal rights, taking into consideration the blatant breach of the right to privacy it represents.                             

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3 Comments

  1. Raju

    Hi Anik

    It is a well-written article. Good Job. No offense, but in my opinion, your argument is a bit of bias with an assumption that only women are victims, in either way (wife sought RCR or husband sought RCR) . As such, your conclusion is men are abusers and they do not have such ‘right to privacy’ ‘innocent until proven guilty (498A Cases)’ . You should have included any landmark cases to present other views as well (Right to privacy is applicable to men as well).

    These marital laws were written not for this generation, but for the past generation when women didn’t come to positions equal to men. Now they are earning equal, professionally shine in almost all field, including politics. But, the victim mentality and weaker gender theory of women makes your arguments a bit of niche view of the law.

    By keeping the argument of “right to privacy” “saving the institution of marriage” “victim mentality of women (497, which was struck down by SC of INDIA)” in mind, courts have given conflicting judgements with no coherent legal theory.

    I would say, a law should be equally applied independently whether a section of society has been marginalized or disadvantaged. The law should be written with the mind that, some women also abusers and when men tried to get out of such marriages, they were slapped with RCR and take away the chances of taking control of their future and starting a new home. So, these laws should be gender-neutral and judges should be impartial in treating victims and abusers (no presumption of guilt).

    In my opinion, Indian law is a bit of mess, when it comes to marital law. (1) One should not treat women as an oppressed section of the society; (2) Women should not have victim mentality; (3) Uniform Civil Code, where women should not be given advantage with special rights at the expense of men (if women’s organizations oppose as such and demand special rights then they shouldn’t demand Equality / Equal treatment / Equal rights). So, RCR is an invasion of right to privacy for both parties of the marriage not just one.

    • Anik Bhaduri

      Raju,
      I am extremely sorry for replying to this after almost a year of your comment. I just never visited this page, and seem to have missed the mail I probably received in this regard.
      I fully agree with the issue raised by you – my article does come off as biased in favour of women, and does not discuss the full scope of the right to privacy in India. I believe such a skewed viewpoint resulted from two reasons – the first being that Oxford HRH requires the length of blogs to be 700 words or less, and the second being my lack of knowledge at the time. ( I was in my first year when I submitted this). I agree that my articulation of the legal situation presents a biased view, and apologise for the same.

  2. JS

    Dear Mr. Bhaduri,

    Yes I agree with you it is about time to abolish section 9, restitution of conjugal rights, as in most cases it is used by men to force women to return to marital homes to suffer domestic violence . Not many women in indian soceity are able to use this provision in their favour to return to their marital homes when husband’s family throws them out of the marital home, wives deserted by their husband or in laws, have no real remedy, as not many women would go to court to claim their right to live with their in laws (especially not giving enough dowry is always reason in india to send woman back to her parents in india, or else to suffer DV in silence either it is psyccal or mental vioelnce ) . I work in UK deal with domesctiv violence case on daily basis I would request to visti CPS website their policy in the UK re Doemstic violence case – UK abolihsed restituttion of conjugal rights in 1970. We are still hanging on to this law whcih had it s roote s old European traditioanl concepts.

    Please do visit CPS Uk website read about Uk, recognises mental violence other concepts, Controlling, coersive behaviour as part of Domestic violene too. Marital rape is a rape – rape is rape whether it is by ones own spouse, it is clearly brech of right to privacy as set in Sareetha case . I see that you are doing comparitive study, that is why I
    am replying to you. I am solicitor invloved defence and prosecution both sides of criminal law in the UK, I also worked in AP state courts, 20 years ago.

    https://www.cps.gov.uk/publication/domestic-abuse
    https://www.cps.gov.uk/legal-guidance/controlling-or-coercive-behaviour-intimate-or-family-relationship

    Thank you for taking time to read this .

    JS-

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