“All Institutions, social or legal, have this in common with rivers, they do not flow easily backwards.” – C.H. Letour Neau
The relationship between the society and law can be termed as a hare and tortoise race. As the society keeps progressing, the law tries to keep pace. While the perception of women as their husbands’ chattel is now gradually changing, remedies such as the ‘Restitution of Conjugal Rights’ continue to maintain the proprietary rights of the husband over his wife. This remedy finds its place under Section 9 of India’s Hindu Marriage Act, 1955 (Hereinafter, “HMA”). It essentially allows the court to pass an order asking the wife to cohabit with her husband, in cases where she has ‘unreasonably’ withdrawn from his society. Its cruelty and barbarity can be understood by comparing it to the forceful tying of a cow, the master’s chattel, to a pole, in case it runs away from him.
As the law advanced, this remedy was made available to the wife as well, and the enforcement of the remedy by imprisoning the party unwilling to return to the matrimonial house was done away with. However, this provision continues to be enforced by attaching the defaulting party’s property. Section 9 of the HMA stipulates that either the husband or the wife can bring a petition for the restitution of conjugal rights if the other spouse has withdrawn from their society without a reasonable cause, unless there is some legal ground for the petition to not be granted. In this article, the author highlights the futility of this remedy, and argues for its abolition once and for all, in light of the recent jurisprudential developments in India surrounding the right to privacy and bodily autonomy.
Section 9 of the HMA: A Toothless Tiger
It is said that the only merit to this barbaric provision is that it is positive in nature, while the other matrimonial remedies like divorce, judicial separation, annulment, etc. are all negative in nature. While the objective of the aforementioned provisions is either the permanent or temporary dissolution of the marital obligations, restitution of conjugal rights seeks to promote reconciliation. However, the ‘positive’ nature of this remedy is merely theoretical, and in reality, the provision becomes as negative as the other recourses like divorce, annulment, etc. Human being are not machines, they are emotional entities. If it is true that a horse can be taken to the water but cannot be made to drink it, it is truer in case of humans. An order of judicial separation cannot suddenly evaporate the emotional strain that forced the party to withdraw from the society of the other person. The courts can enforce the decree passed in furtherance of Section 9 of the HMA by attaching the property of the defaulting party. However, they do not have the authority to compel the party to return to their matrimonial home, to the consortium of their other spouse. Therefore, it is nothing but naïve optimism on the part of the court to believe that a simple judicial pronouncement would be enough to convince the adamant party to return to the matrimonial home.
Analyzing the ‘Remedy’ through the Lens of Privacy
It is imperative to analyze the legal evolution of the notion of privacy in this context, and its implications on the landmark judgements regarding the restitution of conjugal rights such as T. Sareetha andSaroj Rani.
In the case of Gobind Singh v State of MP, the Supreme Court of India interpreted the concept of privacy as one that “preserves the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.” This understanding of the ‘right to privacy’ treats the home as a private sphere where the law should not interfere. In T. Sareetha, the Andhra Pradesh High Court interpreted the concept of privacy in a more individualistic and progressive manner. It held that the right to privacy belongs to an individual, and is not lost by marital association. The High Court observed that when a decree for the restitution of conjugal rights is passed, the wife may be compelled to have sexual relations with her husband, thus depriving her of control over her own body. Transferring this choice of whether to have marital intercourse, from the wife to the state, results in a serious violation of her right to privacy and bodily autonomy. However, in Harvinder Kaur and Saroj Rani, the courts chose to go back to the narrow interpretation of the right to privacy as posited by the Supreme Court in Gobind Singh.
Considering the slew of progressive judgements given by the Supreme Court in the recent past, this position needs to be re-examined. In Navtej Singh Johar v Union of India, the Supreme Court postulated that every individual possesses complete autonomy over intimate choices concerning their personal life, and that the same must be preserved under Article 21 of the Indian Constitution. Similarly, in K.S. Puttaswamy v Union of India, the supreme court held that an individual’s ‘right to privacy’ should be interpreted through an individualistic lens, so as to include within its ambit the right to complete autonomy over their body. The court observed that the right to privacy was a condition precedent to the enjoyment of any other fundamental right mentioned under Part III of the Constitution. Moreover, in Navtej Singh Johar,the court emphasized on the fact that ‘choice and dignity’ are intertwined with one another, and that it is very difficult to think of dignity in its sanctified completeness if there is an obstruction to the right to freedom of choice. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors., the Supreme Court posited that the right to life necessarily includes “the right to live with dignity, and all that goes with it.” By forcing the wife to cohabit with her husband, the court is not only depriving her of the right to bodily autonomy but is also denying her of the most fundamental of all human rights, the right to live a dignified life.
In the year 2015, the report of the ‘High-Level Committee on the Status of Women’ recommended the abolition of Section 9 of the HMA. Similarly, the Consultation Paper on the ‘Reform of Family Law’ prepared by the Law Commission of India in the year 2018 echoed the recommendations given by the ‘Committee on the Status of Women,’ and suggested the deletion of this remedy. However, the parliament has repeatedly turned a blind eye to such recommendations.
The Indian legal system has persistently shown a highly paternalistic attitude towards the private lives of women. Moreover, in the name of protecting the morality and sanctity of social institutions like marriage, the laws have compelled women to silently tolerate the multifaceted system of patriarchy that they come across in their everyday interactions. While some laws do this directly, other laws take a roundabout approach. In a country where marital rape is legally considered an ‘exception’ to the offence of rape and is therefore not punishable by the court of law, directing a wife to unwillingly cohabit with her husband is nothing short of legalizing the offence of rape. It is a matter of grave concern if this barbaric remedy were to have any value in a society other than that of the caveman. Although this provision might appear ‘harmless’ in theory, it is capable of leading to the most atrocious forms of torture, mental and physical. A slightly incorrect diagnosis, and if administered in the wrong place, Section 9 of the HMA could become the deadliest of legal medicines. The Western legal systems have abolished this cruel and patriarchal provision, and it is now time for India to follow suit and get rid of this ‘remedy’ once and for all.