Repeal the Law on Restitution of Conjugal Rights in India

Repeal the Law on Restitution of Conjugal Rights in India

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Marriage and divorce laws in India contain a provision allowing the courts to order a “restitution of conjugal rights”. This means that if a married couple is living apart, the unhappy or “aggrieved” partner can file a petition in the court, asking the court to direct the couple to resume living together. The court may issue such a direction only after hearing both sides and if it is satisfied that there was no reasonable cause to live apart.

This provision allows the court to direct one spouse to return to the other, even against their will.

The provision for restitution of conjugal rights exists in four different laws in India: (1) Section 9 of The Hindu Marriage Act, 1955; (2) Section 22 of The Special Marriage Act, 1954; (3) Section 32 of The Divorce Act, 1869; and (4) Section 36 of The Parsi Marriage and Divorce Act, 1936. The law has been abolished in England and several other commonwealth nations. With the recent developments on privacy and liberty in the legal sphere, it is time for India to repeal the provision for restitution of conjugal rights.

The problem with this provision is threefold:

Living apart from each other, even in marriage, is a personal choice. Marital duties, if any, should be decided only by the people concerned with the marriage (the couple). The court cannot and must not interfere in domestic matters.

England repealed the same provisions in 1970. One of the reasons cited in the 1969 Law Commission Report on the subject was ““A court order directing two adults to live together is hardly an appropriate method of attempting to effect a reconciliation.”

“Conjugal rights” includes not only the right to each other’s society, but also marital intercourse. A court order directing the resumption of conjugal rights would imply that the aggrieved party has the right to sexual intercourse even with a possibly unwilling partner. In other words, an unwilling spouse can legally be directed by a court to live and have sex with their partner.

The problem is magnified because marital rape is currently legal in India. The misuse of this law grants the protection of a court order which allows a person to force their spouse into sexual intercourse. The law violates fundamental rights of privacy, liberty and equality under the Constitution of India. The Supreme Court of India recently held that privacy was a fundamental right (Puttaswamy) and also decriminalised adultery (Joseph Shine). These judgments affect the validity of the law on restitution of conjugal rights.

Privacy means the right to be left alone. It includes bodily autonomy and the freedom to make choices. This law violates the definition of privacy laid down by the Supreme Court in Puttaswamy. In Joseph Shine, the Supreme Court observed that the survival of a marriage should be left to the discretion of the husband and the wife, without any intrusion by the State. The same Supreme Court upheld the law on restitution of conjugal rights in 1984 (Saroj Rani) by stating: It [the law] serves a social purpose as an aid to the prevention of break-up of marriage.

What are we asking for?

To repeal the law on restitution of conjugal rights. This petition to Ms. Menaka Gandhi and the Ministry of Women and Child Development asks for the repeal of this outdated, unconstitutional law which violates the fundamental rights of individuals, particularly women, in India. In 1984, the law withstood the test of constitutionality in the case of Saroj Rani v Sudarshan Kumar Chadha -- the Supreme Court upheld the law because “It serves a social purpose as an aid to the prevention of break-up of marriage”.

Today, the law must be repealed. It is an unreasonable provision used by courts in India to “save a marriage” at the cost of the liberty and autonomy of the individual. One Future Collective’s policy paper on the Restitution of Conjugal Rights presents a thorough review of the law, read it at http://bit.ly/ofc_conjugalrightspaper for more information. 

Please sign this petition to hold your ministers and government accountable and to save our rights under the Constitution of India.