Posted in Fundamental Rights, Marriage and family

“Restitution of Conjugal Rights OR Deprivation of Privacy Rights”?

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, 4th 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

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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.

 

Posted in Critical Analysis, Social Issues

28/04/2018. Dear diary… (On Restitution of Conjugal Rights)

28/04/2018                       

1:35 am                       

Dear Diary,

“To keep your marriage brimming, with love in the loving cup, whenever you’re wrong, admit it; Whenever you’re right, shut up.”

Here’s a picture that I’ve attached, that goes back to my first night. I was lying stark naked next to the love of my life, who was trying to make love with me, who was, for the first time trying to enter my body, that is, only after they allowed us to have our first time.

A Hindu wedding, one of the most sacred of rites, incorporates many timeless rituals and customs, and one such tradition which we were to follow, where the newly-weds were served with a glass of milk on our wedding night in order to de-stress the body and keep the sex drive high[1]. Sadly, these age-old traditions have trivialized this so-called sacred institution of marriage to that of a mere physical form of love. Which makes me wonder, why do we tend to love someone? Is it because we can’t keep our hands off each other’s bodies or is it this deeper connection with our souls which mould us into one entity. Then why is it that in our nation marriage is considered so sacred yet the first act after marriage is celebrated with sex?

Ironically, we are punished for public display of affection and as soon as we are married we are pushed into a room with a glass of milk and a bed decorated with flowers? What if I don’t want to have sex with my partner? What if my partner doesn’t want to have sex with me? Do we defy the institution of marriage if we don’t have sex on the night of the marriage? Why is it that we cannot look at marriage beyond sex? Or maybe without it? Will our marriage not be validated if the act of consummation is not performed? The concept of Consummation is something that I’ve failed to decipher, I mean it neither preaches procreation nor is it the social expectation of sexual satisfaction in marriage.[2] So then why exactly are we still so loyally bound by something, that reduces the magical act of two individuals who are willing to share their body to a mere social obligation to have sex, as and when required.

They say they can’t interfere in the private space of two beings, they can’t indulge in what happens behind the closed doors of this intimate space called bedroom, they can’t intrude in the matters of violation like marital rape where consent is in question. So then why do they contradict themselves by entering the same prohibited area of private spaces and tell us to perform sexual intercourse, to follow the ritual of consummation only after which will they call us legally married. It’s surprising how sometimes, they invade our privacy when we don’t want them to and sometimes they simply don’t, even after we plead them too. How they ignore our cry for justice and yet shamelessly impose rituals in the name of society. And what deepens my agony even more is the fact that the prevalence of the concept of consummation simply fosters the previously existing cultural and societal attitudes and understandings of marriage that make it more difficult to acknowledge these violations.[3]

But that wasn’t enough for us, there also lies a greater evil which creates an inseparation of marriage with that of sexual cohabitation. They call it the restitution of conjugal rights, a process through which the courts will tell me to return to my husband or wife because I am depriving them, because they need me to fulfil their natural urges, because they need my body and physical presence to be constantly available[4].

Now, Marriage has to be seen as one living with another with no autonomy? Neither bodily nor otherwise. This is what has become of this institution, a mere obligation which we owe to our significant other and if we don’t fulfil them, we have a judge and a judiciary who are ready to get involved and tell us what to do in OUR relationship. If this is how marriage is being defined as of now, then it is no different from the forceful forfeiture of our very own body, if marriage cannot be seen separate from sexual cohabitation, then the court order of going back to my spouse against my will is nothing but forfeiture of my body. I’ve started to come in terms with reality, where love in marriage is nothing but a myth and the body and sex are the pith and substance.

So, since you know I am right, do I have to shut up now?

Thanks for keeping my feelings safe, diary.

Ananya Kanoria.

 

[1] https://www.speakingtree.in/allslides/hindu-ritual-of-serving-milk-on-suhagraat-wedding-night

[2] Marriage Customs of the World: From Henna to Honeymoons, by George Monger, pp 82-84

[3] “Case in point – Is consummation a legal oddity? – Solicitors Journal”.

[4] Hetal Vyas, Denying Sex a Ground for Divorce: Karnataka HC TIMES OF INDIA, Apr. 20, 2012, http://articles.timesofindia.indiatimes.com/2012-04-20/india/31373128_1_family-court-share-bed-hindu-marriage-act.


ABOUT THE AUTHOR

Ananya Kanoria

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Ananya Kanoria is second-year Law student of O.P.Jindal University. She discovered at the age of 13, while making her first journal entry, that writing is a cathartic process, a means of releasing her emotions and giving clarity to her jumbled thoughts. She chose Law as her path of empowerment and writing is her tool of paving this path.