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Restitution of Conjugal Rights: A Caveman’s Remedy in the Modern Hindu Society

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“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allows the court to pass an order asking the wife to cohabit with her husband, in cases where she has ‘unreasonably’ withdrawn from his society.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that either the husband or the wife can bring a petition for the restitution of conjugal rights if the other spouse has withdrawn from their society without a reasonable cause, unless there is some legal ground for the petition to not be granted.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.

Conclusion

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.

Sukrut Khandekar is a student-researcher based out of the National Academy of Legal Studies and Research, Hyderabad. He is deeply passionate about gender rights and constitutional law.

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New Social Compact

Grace and a Tennis Celebrity

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image source: Wikipedia

Among the character traits we cherish in fellow humans, grace is often more noticeable in its absence.  The recent saga of a Serbian tennis player and his manner of entry into Australia and subsequent events come to mind.  A champion athlete cannot help but serve as an ambassador for his country, and in Serbia’s case, after the horrors of the Yugoslavia civil war and its prominent role, it is a country that needs all the help it can get. 

Novak Djokovic is ranked number one in the world and is in Australia to defend his title.  He appears to have lied on his Australian entry form:  False declarations are grounds for revoking a visa, and immigration officials acted.  But as world number one, he is a draw for the tournament … and money talks — he is already scheduled to play his first match as this is written. 

Mr. Djokovic’s lawyers went to court which overturned the immigration officials’ order against him on the grounds they had not followed proper procedure.  Then the immigration minister, Alex Hawke, who had been thinking about canceling his visa actually did.  So it’s back to court.

But it gets worse:  Djokovic has not been vaccinated.  He claims that having had the illness, he is immune.  Scientists have found that to be of short duration.

He also broke isolation rules after he had tested positive, particularly by not isolating himself, thereby endangering his contacts.  Cavalier his behavior maybe, perhaps careless but possibly a sense that rules are not for celebrities, only for lesser mortals.

That it caused a sense of outrage is apparent.  A leaked video has a couple of news anchors discussing Djokovic in not very flattering terms:  “Novak Djokovic is a lying, sneaky asshole”, says one.  Yet the comment also is evidence of a coarseness that has gradually pervaded language.

In the meantime, Mr. Djokovic’s father has his own take on the affair.  He calls it a conspiracy to prevent his son from breaking the previous record of 20 Grand Slam title wins held by Rafael Nadal and Roger Federer because they are all against Serbia.  But Serbia, which still believes in little Jesus and is thus protected, will prevail.

Would aphorisms like ‘a storm-in-a-teacup’ or ‘mountains out of a molehill’ be descriptive?  Not if it’s news across the world.  Yet, if he continues to rant on the tennis court and win, it could be his way of getting rid of nerves, an eternal bugaboo. 

He must have another crucial concern:  the biological clock.  At 34 going on to 35 in five months, and with much younger rivals snapping at his heels, it has to be a race against time to win that 21st major title.

Just like grace notes relieve tedium in music, perhaps Djokovic’s rants relieve the boring baseline game that modern tennis has become.  No more a Frank Sedgman or a Pancho Gonzales charging up to the net to put away a dramatic volley, tennis now needs a grace note, or two, or three …  

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New Social Compact

Age No Bar: A Paradigm Shift in the Girl Child’s Marriageable Age in India

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Image source: indiatoday.in

India is a country known to have diverse culture, languages, social norms, ethical values, traditional customs, belief system, religions and their personal laws. With personal laws governing succession, adoption, divorce etc, one of the most important aspects governed by the personal laws is Marriage. Indian society has a deep-rooted belief of marriages being the most sacred bond between two people. Every religion of the country gives utmost importance to this sacred bond. Since this bond is of such great importance to the Indian society and to the people of the country, the legal system and the personal laws have made efforts to legalise the sacred bond. There are conditions and requirements laid down for the marriage to be solemnized and get a legal sanction. One such important condition is “age”. According to most of the personal laws and The Prohibition of Child Marriage Act, 2006 the legal age for a man should not be less than 21 years of age and a woman 18 years of age. Recently the government introduced The Prohibition of Child Marriage (Amendment) Bill, 2021 to raise the age of marriage for women from 18 years to 21 years

Introduction of this bill shall prove to be a ray of hope for people struggling to curb the evil of child marriage in our country. One cannot claim progress unless women progress on all fronts including their physical, mental and reproductive health. The Constitution guarantees gender equality as part of the fundamental rights and also guarantees prohibition of discrimination on the grounds of sex. This bill would bring women equal to the men as far as the legal age of marriage in concerned. Under the National Family Health Survery-5, it is stated 7% of the girls aged between 15 and 18 years were found to be pregnant and nearly 23% of the girls in the age group of 20 to 24 were married below the age of 18 years. There are researches to point that from 2015 to 2020, 20 lakhs child marriages have been stopped.

In my opinion, increasing the age of women from 18 years to 21 should not be seen solely as an equal opportunity for them to choose their life partners at the same age as that of men, but this is a step taken by the government to eradicate child marriages that still find way in to our society. It should be seen as an effort to bring down maternal mortality rate and infant mortality rate. It shall also try and curb the teenage pregnancies, which are extremely harmful for women’s overall health as well as the infants born out of it. We also have to take into consideration that a large part of our society still lack basic education and awareness about these laws and the advantages attached to it. We as educated citizens of the country should take extra efforts in making people aware and to make them understand about the disadvantages associated with child marriage and the overall consequences their children would face in the future. We should appreciate the efforts taken by the government to tackle gender inequality and gender discrimination adequate measures taken to secure health, welfare and empowerment of our women and girls and to ensure status and opportunity for them at par with men.

*The Views Expressed are Strictly Personal

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New Social Compact

Post Pandemic – What’s Next

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Setting aside the omicron hysterics leading to marshal law lockdowns, the absurdity of a last chance vaccine or risk a long winter of death; or the charade of standing in a ridiculously long line of humanoids seeking a covid test after being fully vaccinated; the more contagious omicron variant with much milder symptoms, akin to the common cold, looks more and more like a natural vaccine being wind swept across the world. If we are at the beginning of the end of the pandemic as the mountain of positive cases peak and immunity engulfs the herd of humanity, what is the next step for governments, businesses, health officials, and the people of earth?

We have entered our third calendar year with the pandemic, and one must wonder how society will move forward and under what guise and endgame. First, there are many questions on the more immediate future for the everyday person, and secondly, what is the impact of the actions taken by government, big pharma, and healthcare officials throughout pandemic, and lastly, will there be any accountability for the actions taken, whether mandating experimental medicine and the potential long-term implications to one’s physical and mental health, societal lockdowns and the economy, children’s learning and coping, and civil liberties removed.

Close to home, what will happen to our jobs and will those who refused the injections be allowed to return to the workplace that terminated their employment?  How will schools and colleges catch students up after all the disruptions? How emotionally and mentally stable will we be? What of broken marriages and abusive situations, bankruptcies, deaths from missed surgeries and acute care, drug overdoses and suicides. Will people refrain from shopping in-person, attending church, or traveling? Will families heal their rifts over the vaccines and find a way to move forward?

On a more macro level, it was not long ago that we were told one shot was safe and effective. During an April 2021 MSNBC interview, Rochelle Walensky, the Director of the CDC, unequivocally claimed vaccinated people do not carry the virus. President Joe Biden, during a CNN Townhall in July 2021, was emphatic that you cannot get COVID-19 if you are vaccinated.  Now, the vaccinated are being told not to attend restaurants or large gatherings with a tsunami of breakthrough cases, and you are required to go for a third shot and then a fourth new and improved injection currently being formulated. Explicitly, any expert telling you to get vaccinated or take the booster to prevent you from getting COVID or spreading the virus is not being truthful and potentially creating further damage.

The ineffectiveness of the vaccines to prevent COVID is clear; however, no one really knows how safe the experimental medicine will be with forgoing normal clinical research over five years of testing prior to the FDA’s regular approval process. This vaccine may have provided a level of support to make your symptoms better, but it never immunized the subject. Unfortunately, there is preliminary research coming to light that the vaccinated are now more likely to get COVID than the unvaccinated. One might even argue the longevity of the pandemic and viral mutations is now a pandemic of the vaccinated.

It was not long ago that some front-line healthcare workers were saving lives, and then were told they had to take the injection or lose their job. Now, many vaccinated healthcare workers are being infected with COVID-19 and being told they can remain at work or isolate for only five few days; yet the unvaccinated nurses who have not been infected could easily wear a n95 mask and be reinstated to provide care.

Sadly, many businesses and corporations abetted the enslavement of their employees by forcing them to choose between an experimental medicine or lose their job and ability to provide for their family’s survival. A gun was held at their head to take a vaccine that is not effective and perhaps unsafe, and they lost their basic freedom to determine one’s own health and medical treatment. These decisions need to be revisited in the future with ensuing tribunals and inquiries.

In the much bigger picture, a large segment of society has lost touch with reality and descended into a time warp of delusion through the relentless fearmongering fastened with the censorship and intimidation ploys to obey the rules or be labeled an anti-vaxxer conspirator. If science cannot be questioned, it is no longer science. It’s propaganda.

The policies nurtured by the national healthcare agencies and their cohorts on the daily news networks may have created the greatest mental illness ever witnessed where the long-term psychiatric effects evolved into a mass panic of irrationality.

“Mass Formation Psychosis” is a term gaining prominence after Belgian psychologist and statistician Dr. Mattias Desment proffered a theory for what he concludes as a global behavioural phenomenon derived from the coronavirus pandemic. Desment states several things are required to exist if you want a large-scale phenomenon to emerge. First, there needs to be a large population socially isolated that lack social bonds and who experience a lack of sense-making in life. Then it must be coupled with a lot of free-floating anxiety and psychological discontent without people being able to connect it to something – then society is highly at risk for the emergence of the mass phenomenon.

These findings can account for the form of mass hypnosis or a madness that dismisses scientific principles and adopts the government’s noble lies and dominant narrative concerning the safety and effectiveness of the genetic vaccines. What one observes is about 30% of the population is brainwashed and indoctrinated by the bombardment of daily misrepresentations and attack anyone who shares alternative information that contradicts the propaganda they have embraced to the point where families, friends, and workplace networks have been torn apart. The 40% of the population in the middle simply follow along with any alternative information being censored and deemed as anti-vaxxers not following the science or some right-wing conspiracy. The remaining 30% continue to question the narratives and in some cases fight against it.

We can compare the current “Mass Formation Psychosis” to the highly educated German population between the two world wars when they became decoupled into a free-floating anxiety and a sense that things have gone awry. Their attention was then focused by a leader or a series of events onto one small point where they literally went mad. A good percentage of the population got behind the hatred of Jews while a large swath of the nation simply went along, and a smaller percentage of dissenters were exposed and systematically removed. The famous French philosopher, Voltaire warned us of our civil liberties being lost when he said, “Those who can make you believe in absurdities can make you commit atrocities.”   

Parents are being further coerced by the irrational fear of death being obfuscated through the news media to line up your child up for a potential life altering injection that has not come close to being assessed for long health implications. Even when data points to a very low fatality rate among children measuring .002% and young adults at .01%, the FDA throws mud at the wall with announcing a third shot in adolescents 12-15 years old five months after their previous injection.

We are on the cusp of an immense dedication to counselling for mental health and perhaps medical malpractice class action suits at a tremendous cost for many years to come. Imagine your child never seeing their teacher’s face all year as she pronounced words or smiled with encouragement. Imagine some students alone all day in a room on the internet and never socially interacting. Imagine the cost of a child breathing cotton fibers in the mask all day. The unleashed cruelty against our kids is a crime and will have lifelong consequences.    

In a trending microcosm across many jurisdictions, the CEO for OneAmerica, Scott Davison, a $100 billion insurance company located in Indianapolis since 1877, said during a news conference on December 30th, that the death rate is up a stunning 40% among working-age people 18-64; and that the data is consistent across every player in the industry and the highest ever seen in the history of the business. Davison shared just how bad it really is when he said a one-in-200-year catastrophe would be a 10% increase in deaths of this age group so 40% is just unheard of. Most of the claims for death being filed are not classified as COVID-19 deaths.    

During the same conference, Indiana’s chief medical officer said the number of hospitalizations in the state is now higher than before the COVID-19 vaccine was introduced a year ago – a weekly count ending Nov. 8th had 195 reported COVID related deaths where most of these were elderly compared to 1,350 people from other causes. The president of the Indiana Hospital Association added that hospitals across the state are being flooded with patients experiencing many different conditions and noted the average person’s health is now declining. The president confirmed the extraordinarily high death rate, and it was noted that the vast majority of ICU beds were occupied by people with other conditions than COVID-19.

What is responsible for the stunning 40% in deaths? Could it be one’s health condition in decline over the stress of the COVID mandates and lockdowns, or perhaps delayed medical care? Could there be effects from the vaccine? The Governor of Indiana and the various state level experts did not have a clear answer; however, they were clear that the high number of deaths and hospitalizations followed a year after the vaccine rollout.  

Dr. Robert Malone, an internationally recognized scientist/physician and original inventor of mRNA vaccination as a technology and the mRNA platform delivery technologies, including holding numerous patents in these fields with over 100 scientific publications and 12,000 citations, places him in the “outstanding” impact factor. The proven 30-year vaccinologist and inventor of the mRNA technology has recently become known for questioning the safety and bioethics of how the COVID-19 genetic vaccines were developed and forced upon the world.

Malone discovered many short-cuts, database issues, lies told in the developments of the Spike protein-based genetic vaccines; while advocating for drug repurposing and the rights of physicians, and finally the unethical mandates for administering experimental vaccines to adults and children by authoritarian governments being manipulated by large corporations (big pharma, big media, big tech) to such an extent that they no longer represent what is in the best interest of humanity. This once acclaimed doctor has been attacked, censored, and suspended permanently from Twitter for dissenting from reciting the government’s narrative.

Governments, the CDC, FDA, and leading healthcare officials will not willingly relinquish their grip on power and will continue to weaponization of the pandemic and prolong the totalitarian measures to silence scientific opposition and silence political dissention. How much longer will the unvaccinated be the scapegoat for the extended pandemic? Will the unvaccinated ever be allowed back into society to work without this vaccination? Will we ever accept ‘natural immunity’ that provides up to 27 times the immunity against the virus than the vaccine? Will we push injections into young children who are not at risk of death but may be at greater risk from the vaccine? For now, the answer from the top is clear. President Biden on January 4th maintained that COVID-19 to be a pandemic of the unvaccinated. 

One might hope that answers and culpability will take place once society looks back and realizes that the vaccines and mandates caused more damage across all spectrums of society, however it is unlikely anyone will be held accountable. One must consider whether the oppressive pandemic pendulum has swung too far never to swing back where our freedoms are peacefully reinstated. We must keep in mind that the mandates and lockdowns, Big Tech censorship, news media collaboration, and the fear-laden ‘Mass Formation Psychosis’ leading us down a path to a China-like Neo-Marxist society removes any notion that our civil liberties and democracy is preordained. We the people have a choice over collective self-annihilation.    

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