Author: Samiksha Gupta
Founder, Editor and Writer | Leagle Samiksha

Introduction:

As an institution, marriage came into existence to determine paternal ancestry. The legitimisation of off-springs was necessary to ascertain the property rights of individuals.

With colonisation, Christianity came to India with apparent elements of dissolution of marriage.  Personal laws started being written down. In an attempt to balance the traditional values with the modern jurisprudence, the law created conflict between holding on and letting go of the State’s power to interfere.

Cohabitation is one of the elementary implications of marriage. In fact, the basic understanding is that the husband and wife are entitled to the mutual consortium and all such relations that flow out of the marriage.[1] One of the frequently sought remedies in when one of the spouses withdraws himself or herself from the society of the other, without reasonable excuse is known as the Restitution of Conjugal rights (RCR). 

Availability in Personal Laws and Execution:

Under the Hindu law, Sec 9 of the Hindu Marriage Act, 1955 contains this provision. Under Muslim law, no statute prescribes the said remedy. It is extracted from the general laws. It may also be applied to inter-caste marriages under Sec 22 of the Special Marriages Act, 1954. This provision is a word-to-word copy of the Sec 9 of Hindu Marriage Act, 1955. The Christians usually invoke Sec 32 and 33 of Indian Divorce Act, 1869.

The four essential elements to get a decree of RCR passed in one’s favour are the same –

• a valid marriage,
• a deserting spouse,
• withdrawal to be without reasonable cause, and
• the court’s satisfaction of the same.

If this interference weren’t already enough, a decree for restitution of conjugal rights can also be enforced in a court of law. Order XXI Rule 32 of the Civil Procedure Code, 1908 provides for the mode of execution of such a decree via attachment of property of defaulting spouse.

Violates Right over Body:

The problem here arises with “reasonable cause” and subjective elements of “satisfaction”. As an individual, every human being is allowed to have full control over their body. This right also includes the decision of whether or not a person, man or woman, wants to have or continue to have conjugal relations with their spouse. The mere fact that one of the spouses ‘does not wish’ to continue sexual relations and cohabitation should ideally be a “reasonable” enough excuse.

State-encouraged marital rape:

There is no brutal tyranny than the long arm of law mandating an unwilling person to indulge in the positive act of sex.[2] A non-consensual sexual intercourse is nothing but rape. A battered wife who refuses to cohabit with her husband for the reason of his cruelty, her own depression, his drunkenness etc. can be forcefully drawn inside her matrimonial house (more specifically, bed) by the husband by using this remedy. A woman’s refusal to cohabit with her husband is taken as a challenge to manhood due to deep-rooted patriarchy.[3] Thus, the forceful nature of this remedy is nothing but a projection of more than half a century old mindset that disregarded a woman’s right to her person.

Harassment to the Spouse:

Imagine the plight of a wife who leaves her husband’s house after being tired of being beaten up by an abusive husband, or being subjected to the evil eye of other male members in the house.[4] Imagine the sheer horror of the woman who is forced to go back to such a husband’s house and bed by the law. On the other hand, imagine the mental harassment of a husband who is forced to have sexual relations with his wife after he has expressed clear disinterest in the same.[5] In such a case, the state is responsible for putting the life and limb of its subjects in jeopardy. The involvement of State in decisions as personal as the bedroom relations of a married couple is like letting a bull lose in a chinaware shop.

Reducing a person to the status of chattel:

Marriage is a social and spiritual union between two people. A spouse does not acquire proprietary rights over the other by virtue of marriage.[6] The authors believe that the term “conjugal rights” is feudal and patriarchal. Seeking for restitution of conjugal relations as a matter of ‘right’is neither constitutionally, nor morally acceptable. When the State steps into the bedroom of a spouse through a decree of restitution of conjugal rights, it treats the applicant as the rightfully entitled owner of the defendant. It is universally accepted that no human being can be ‘owned’ by another, lest we should be pushing ourselves back in time to the era of slavery.

Conclusion:

Right of individual choice is the cornerstone of a democracy. People are the “bhagya vidhata”, the deciders of everything – right from their government to the mode of conducting their personal lives. It is the State’s job to oversee and facilitate smooth operation without suffocating its subjects. When the state takes up the job of preventing marriages by stepping inside a couple’s bedroom, it reduces the governed people to an inferior intellectual and autonomous position. 

From a sacred bond, marriage has jellified into a social contract. It is supposed to be voluntary union between a man and a woman. However, gender inequality finds its way subtly flow into the daily lives of ordinary people. Even in the 21^st century, the world in general and Indian society in particular is far from achieving gender equality and equity.

Is it not a lamentable situation that the law in the world’s largest democracy allows the State to wreck such acts of aggression on its subjects in terms of private and intimate matters? The remedy of RCR is outdated from the perspective of human rights, and not just women rights alone. It is tyrannical, barbaric and unconstitutional. It stands as a massive roadblock in the way of achieving equality in society and breaking away the shackles of patriarchy. It must be done away with.

[1] Balwinder Singh, Wife’s Right to Employment Vis-a Vis Husband’s Conjugal Rights Under Hindu Law: A Critique, 8 NUALS L.J. 87 (2014).

[2] Vimal Balasubhramanyam, Conjugal Rights vs Personal Liberty: Andhra High Court Judgment, 18 E.P.W. 1263 (1983).

[3] Aditya Shroff & Nicole Menezes,  Marital Rape as a socio-economic offence: A Concept or a Misnomer!, Westlaw, 1994.

[4] Debasis Poddar, Restitution of Conjugal Rights: A Quest for Jurisprudence behind the Law, 4 J. Nat’l L. U. Delhi 93 (2017).

[5] Atmaram v Narbada Devi, AIR 1980 RAJ 35

[6] Sudhir Chandra, Rukhmabai: Debate over Women’s Right to her Person, 31 E.P.W 2937 (1996).