August 1, 2021

Gender Inequalities under Conjugal Right(s) laws


Restitution of conjugal rights is the restoration of privileges that parties in matrimony are entitled to. It is the fundamental right that either spouse has towards the other when one withdraws himself/herself from society, which, acts as a (relief) measure to mend a breaking marriage. Feudal England era equated marriage to acquiring property; a man’s possession like any chattel would include women and children. The law was prevalent until the introduction of Section 20 of the Matrimonial Proceedings and Property Act 1970, which abolished the right to claim restitution of conjugal rights in any English Court. This right however, has been accepted in the Indian Judicial System.

Section 9 of the Hindu Marriage Act, 1955 lays down the grounds for restitution for conjugal rights. Takeaways from this section are-

1. Either parties can file for this remedy in the district court

2. Respondent has withdrawn from society

3. The statements made by the Petitioners must be accepted and satisfied to the Courts standards.

This relief is only specific to valid Hindu marriages. The rationality behind this section is to “save” a failing marriage. One spouse is entitled to comfort of the other and vice versa and when either has withdrawn without any reasonable excuse, the Court has the right to interfere. If the decree is defaulted, Order 21, Rule 32 and 33 of the Code of Civil Procedure allows the Court to attach property of the judgement-debtor. On further default (of 6 months), the Court can authorize the sale of said property. Although this financial sanction is not always enforced, the Court can order the defaulter to pay a certain amount of money periodically[1]. This measure is conditional to failure of other reliefs- reconciliation, conciliation, and mediation.

Conjugal rights sections under other personal laws would include- Section 2 of the Dissolution of Muslim Marriage Act, 1939, Sections 32 and 22 of the Divorce Act, 1869 and Special Marriages Act, 1954 respectively. It is important to point out that essential components under Section 9 of HMA would also be applicable under said sections.

Subsequent development to marital status of women has been made, however these amendment and statutes are questioned from the spectrum of viewing women as a dependent character. We live in a male dominated society, where women are considered inferior especially when it comes to skills, talents and intelligence. Women are rarely seen to be the sole breadwinner of the house since it’s not the norm of the society. It is assumed that the woman are limited to looking after the family and children while the husband becomes the sole earner in the house. Moreover, this idea of patriarchy is so imbibed in us, that men feel entitled to its position. It is this very mentality that makes us biased.

Even though restitution has helped the grieving parties in a time of need- to mend a broken marriage, it gives one an impression that women cannot always sustain on their own and are dependent on their spouse for maintenance. Although this relief is available to both the parties- husband and wife- under most circumstances, the husband habitually claims this relief more than the wife does. It is a power struggle between both the parties, and more often than not, it is the woman that succumbs, thus allowing the man to regain his original stature. Individuality of the woman is always, that which is given up uphold the stature of the “holy sacrament of marriage”.

There are numerous cases to highlight the fact that the law itself in many situations favor of the husband, effectively shadowing the woman’s perspective in order to save the marriage. Take the case of Tirath Kaur vs Kirpal Singh[2], wherein the court held that- the husband had the right to have his wife to live with him given their situation. It did not absolve the wife from discharging her duty towards the husband. Moreover, they also held that the attitude of the wife would not be a reasonable excuse to live apart.

In another case, Kailash Vati Vs Ayodhya Prakash[3], on similar facts, the Court also held the case in favor of the husband. They stated that, where the wife accepts the employment against the wishes of her husband from the matrimonial home, would be considered as withdrawing herself from the society and marriage, thereby violating her duties towards the marriage.

Why isn’t the women’s troubles and consideration taken into account? Why is it always necessary to uphold the so-called sanctity of marriage being irrevocable?

One can answer this question by highlighting that in an ideal society it is assumed that a woman automatically compromises her situation for the betterment of her husband and “family”. In actuality this shows that the women is of a stronger stance as she always sacrifices her own needs for the needs of others unlike what the society assumes.

Over time, there has been significant shifts. Steady progress has been seen in the development of women rights in every aspect- in places of work, and livelihood, hence shouldn’t undermine the action taken up by the judiciary to help change this societal ideology. These cases were taken to understand the projections of norms and biases that have been created in the society that we belong to. Moreover, it is also those people in the society that bring about the redundancies of these norms (ex- LGBTQI, women right groups, etc.), shifting our ideologies to one that doesn’t discriminate, and segregate or create bias. These support groups are important since help us move into a world that treats everyone equally (in every aspect). It is because of such groups that made the right for women to vote, to work, to become equal members in family businesses, and have the stature equivalent to any other person possible.

The concept of patriarchy is deeply imbedded into our ideologies; it begins to change when we stop dividing what duties make up a ‘man’ or ‘woman’. If we treat every aspect indifferently, we grow up indifferently; there is no bias or division. We are treated as equal beings, and that is what our future strives to be. Substantive progress has been made, however it is not enough, there are still many women who fall prey to the norms of patriarchy and society, and it should be our responsibility as the future generation to change this.


[1] Karan Jawanda, 2018, “The Remedy of Restitution of Conjugal Rights Under Hindu Law- A Negation of Constitutional Liberties and Gender Justice”, International Journal of Research in Humanities, Arts and Literature, Vol.6 Issue 5

[2] AIR 1964,PUNJ 28

[3] (1977)79 PLR 216

Author Details: Janavi Venkatesh (OP Jindal Global University)

The views of the author are personal only. (if any)


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