Marriage is defined as “the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex”[1]. Marriage is the union of a man and woman by law for mutual rights and discharge of obligations. This cluster of mutual rights is collectively called conjugal rights.

As per Hindu law, marriage is eternal, divine, and sacramental. According to the Hindu philosophy, the objectives of marriage are Dharma- righteousness, virtue and justice, Praja or Santhana – Procreation, and Rati- Pleasure. “Marriage is considered as a socio-legally sanctioned route to progeny, in obligation to ancestral debts and mandates.[2]”

A positive remedy that was formulated to protect the institution of marriage by the Hindu Marriage Act is a restitution of conjugal rights. Though it was constituted a positive remedy for preserving the sanctity and affirmation, the provision does not adapt itself with changing times. Since the institution of marriage had several changes, only confusion and problems are popping out of this remedy.

The first case where this provision was declared to be unconstitutional was T. Sareetha v Venkata Subbaih[3]. In this case, the Andhra Pradesh High court had held restitution of conjugal rights as against right to privacy. This judgment was subsequently overruled in Saroj Rani[4] Case. But it should be noted that the right to privacy was not considered a fundamental right when these judgments were declared. But now the Honourable Supreme court had held that right to privacy is a fundamental right[5] under Art 21 of the constitution. Therefore, this puts the validity of the provision into question.

Article 21 states that “No person shall be deprived of his life or personal liberty except according to the procedure established by Law”. This is narrated in a negative style but entrusts the positive rights of life and personal liberty. Privacy is an element of Art 21 and privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation[6]. Therefore, sexual activity without the person’s will is only making “one’s body a vehicle for the procreation of another human being”, as stated in the T. Sareetha[7] case. This leads to surrender one’s body to the domination of another is a mental torture, degrading dignity and grossly violating the right of privacy.

A right of free choice is complete autonomy to decide how one’s body is to be sensed and how it is to be used of procreation of children. Forced marital cohabitation is a major violation of the right to privacy and this should never be carried on with a legal sanction and support from legislation. “A decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person.[8]” Therefore, restitution of conjugal rights gives wide scope to degrade the integrity of one’s body and restricts the autonomy of decision making about oneself.

Marriage, procreation and sexual orientation are integral parts of the right to privacy that gets infringed because of this provision. Even the ancient Hindu law does not forcibly compel the wife to cohabit with her husband. In Bai Jiva v Narsingh Lalbhai[9] it was observed by the Bombay HC that, “Hindu law itself even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanction or procedure as compulsion by the courts to force her to return against her will”.

Restitution of conjugal rights originated in England where marriage is considered as a contract and wife is a chattel supposed to be owned and possessed by the husband. The same started having its roots in India from the case of Monshee Buzloor V Shumsoonaissa Begum[10] in 1866. But in Britain itself, this remedy was abolished in 1970. It is clear that restitution of conjugal rights is a remedy that had never existed in ancient India; it was implemented in India from England even in England this had been abolished in 1970. Moreover, this remedy infringes the fundamental right of right to privacy. Therefore, it is high time for the legislature to amend this outdated unconstitutional provision for the protection of dignity and privacy rights.

[1] Black’s law dictionary, 4^th edition, 1968

[2] 71st Report of the Law Commission- the Hindu Marriage Act, para 6.5

[3] T. Sareetha v Venkata Subbaiah, AIR 1983 AP 356

[4] Saroj Rani v Sudarshan Kumar Chanda, AIR 1984 SC 1562

[5] Justice K.S Puttaswamy and others v Union of India and anr

[6] ibid

[7] Supra note 3

[8] ibid

[9] ILR 1927 Bom 264

[10] 1866-67 (11) MIA 551

ABOUT THE AUTHOR

Sowjanya S

Miss Sowjanya S is a third-year law student at School of law, Sastra deemed to be University, Thanjavur, Tamil Nadu where she is pursuing B.com LL.B.(Hons). She hails from Chennai where she had also completed her schooling. Research had always been a fascinating work for her.  She is a hardworking smart student who always has the curiosity to learn. She loves to brainstorm problems and find effective solutions.