November 29, 2020

Restitution of Conjugal Rights – Time’s Up!

It is the most tricky and deceptive matrimonial remedy and operates on extremely slippery premises. In appearances though harmless, it is capable of causing serious trouble and torture.[1] This has been famously said in the context of the decree of restitution of conjugal rights, by Raj Kumari Agarwala. This “remedy” has been codified under S.9 of the Hindu Marriage Act, 1955, as per which, if a spouse in a Hindu marriage withdraws from the society of the other without any reasonable excuse, then the aggrieved spouse can apply for a decree for restitution of conjugal rights. If there is no cohabitation after a period of one year from the date when the decree is passed, an application for divorce can be filed. Similar remedies are available under other personal laws[2], as well as under the Special Marriages Act, 1954[3].

Marriage gives rise to rights and duties that both parties owe to each other[4] and it means different things in different cultures and religions, for example, it is a sacrament for Hindus and a contract for Muslims. The remedy of RCR did not originate from the Dharmashastras or Mohammadan law, rather it originated in England, where marriage was considered to be a property deal, and the wife was supposed to be her husband’s property.[5] Under such an understanding, the husband and wife were considered to be one person[6], and the legal identity of the wife was suspended only to be subsumed into her husband’s identity.[7] This is evident by the fact that the husbands had ownership over all the resources, while wives had nothing but themselves.[8] The case of Moonshee Buzloor Raheem v. Shumsoonissa Begum marked the introduction of RCR in India, where this remedy was afforded as specific performance.[9]

RCR has been challenged as unconstitutional for being violative of Art. 21, 14 and 19 of the Indian Constitution. Art. 21 which guarantees the fundamental right to protection of life and liberty includes both dignity and privacy within its ambit. When a person leaves the matrimonial home or withdraws from the society of their spouse, the court, by passing a decree of RCR, compels them to resume cohabitation with their spouse which also includes sexual intimacy. This constitutes a gross violation of the person’s choice and sexual agency. Due to the patriarchal structure of our society, women are more vulnerable in such arrangements. RCR can lead to physical and sexual abuse of the wife by her husband. Further, it makes the woman’s body a site for forced reproduction. Law cannot, in any circumstance, force an individual into sexual relations causing a breach of privacy and negation of dignity. This was observed in a judgement of the Andhra Pradesh High Court – T. Sareetha v. T. Venkata Subbaiah.[10] However, the Delhi High Court took an opposing view in the case of Harvinder Kaur v. Harmander Singh Choudhry.[11] The Andhra Pradesh HC was criticized for its narrow view of the conjugal rights and it was stated that cohabitation does not only involve sexual intercourse. Physical intimacy though an important element is not the only element to be considered. However, the court failed to appreciate that in the matrimonial home, the man is more powerful than the woman, both physically and socially, and the chances of the wife being forced into sexual relations are extremely high. According to this decision, the Constitution and the protection it offers have no place within the marital home as it is a private matter, and thus, the wife is absolutely at the mercy of her husband. RCR makes both the courts and the government abettors of “legalized rape”.[12]

When the question of constitutional validity of Section 9 was placed before the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha[13], it unfortunately agreed with the Delhi HC and upheld its validity. This clearly shows that the Court feels that protection of marriage as an institution is of utmost importance, even at the cost of personal freedoms and rights of women in the society. Thus, a provision denying women their dignity and privacy still continues to be a part of the country’s personal laws.

Further, the ineffectiveness of RCR has been realized by English law too.[14] A law which denies the humanity of a class of persons and reduces them to mere property must be struck down.[15] Additionally, the garb of a social institution should not serve as an excuse for the judiciary to deny justice.

RCR is violative of Article 14 which grants the right to equality and equal protection of laws. A common argument for the supporters of the provision is that it is gender neutral, implying that both men and women can apply for a decree of RCR. However, as suggested by Flavia Agnes, “A legal provision has to be judged not by its legalistic wordings but its application to real-life situations.” [16] The Constitution offers equality amongst people who are similarly situated. Women were always at a disadvantaged position in the Indian society and RCR further disparages it. With regard to T. Sareetha v. T. Venkata Subbaiah[17] it was observed that “By treating husband and wife who are inherently unequal as equal, the judge held that this section offends the rule of equal protection under the laws ensured by Art. 14 of the Constitution. He further added that in actual fact, the remedy works only for the benefit of husbands and is oppressive to women.”[18]

Additionally, the notion of what is regarded as a “reasonable excuse” for leaving the matrimonial home is extremely patriarchal. In a plethora of judgements,[19] it has been held that a woman who stays away from the marital home because of her job has withdrawn from the society of the husband on unreasonable terms and by a decree of RCR, is compelled to resume cohabitation. This is violative of Article 19 (g) which ensures the right to practise any profession.

Moreover, RCR has rarely been observed to be used for actual reconciliation. Instead it is mostly used as a means for a future claim of maintenance or divorce.[20] This defeats the very reasoning behind this provision and it serves as only a “stepping stone” for some other remedy.[21] Moreover, the use of law to force an individual to do a positive act is an unjust violation of their privacy.[22]

In conclusion, it is submitted that a provision which forces persons to engage in positive conduct and not merely keep to an order, constitutes an unjust violation of the rights guaranteed to them by the Indian Constitution and must be struck down. The decree of RCR while unjust in its very nature also makes women extremely vulnerable and constitutes a direct attack on their personhood and agency. A provision providing for reconciliation or mediation may, if the need be, replace RCR. If it is abolished, then provision for ancillary reliefs for the deserted spouse such as maintenance and custody of children may be added or else there would be no legal avenue for these remedies unless the spouse is willing to dissolve the marriage.[23] However, RCR as it exists in the present times, needs to be struck down.[24]

[1] Raj Kumari Agarwala, ‘Restitution of Conjugal Rights under Hindu Law : A Plea for the Abolition of the Remedy’ (1970) 12 Journal of the Indian Law Institute 257, 262

[2] Indian Divorce Act 1869, s 32, 33 ; Parsi Marriage and Divorce Act 1936 s 36

[3] Special Marriage Act 1954, s 22

[4] Paluck Sharma, ‘Restitution of Conjugal Right : A Comparative Study among Indian Personal Laws’ (Indian National Bar Association) <https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/> accessed 27 March 2020

[5] Paluck Sharma, ‘Restitution of Conjugal Right : A Comparative Study among Indian Personal Laws’ (Indian National Bar Association) < https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/> accessed 27 March 2020

[6] M. E. Doggett, Marriage, wife-beating and the law in Victorian England (London, 1992), Chapter 3

[7] Joanne Bailey, ‘Favored or oppressed? Married women, property and ‘coverture’ in England, 1660–1800’ [2002] 17 (3) Continuity and Change 351

[8] M. Hunt, ‘Wife beating, domesticity and women’s independence in eighteenth-century London’, [1992] 4 Gender & History 18–19

[9] Moonshee Buzloor Raheem v. Shumsoonissa Begum, [1867] 11 MIA 551

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

[11] Harvinder Kaur v. Harmander Singh Choudhry, [1984] RLR 187

[12] Raj Kumari Agarwala, ‘Restitution of Conjugal Rights under Hindu Law : A Plea for the Abolition of the Remedy’ (1970) 12 Journal of the Indian Law Institute 257, 260

[13] Saroj Rani v. Sudarshan Kumar Chadha, [1984] AIR 1562

[14] Marshall v Marshall, [1879] 5 P.D. 19

[15] Joseph Shine v. Union of India, [2018] SC 1676

[16] Flavia Agnes, Women and Law in India (OUP 2004)

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

[18] Flavia Agnes, ‘Law and Gender Inequality’ in Women and Law in India (OUP 2004)

[19] Tirath Kaur v. Kartar Singh, AIR 1964 Punj. 28 ; Gaya Prasad v. Bhagwati, AIR 1966 MP 212 ; Smt. Kailash Wati v. Ayodhia Prakash, (1977) 79 PLR 216 (FB) ; Surjit Kaur v. Ujjal Singh, 80 PLR 693 (1978) ; Deepa Suyal v. Dinesh Suyal, AIR 1993 All. 244

[20] Smt. Venkatamma v. Venkataswamy, AIR 1963 Mys. 118 ; Varalakshmi v. Viramulu, AIR 1956 Hyd. 75 ; Teja Singh v. Sarjit Kawr, AIR 1962 Punj. 195 ; Tarak Nath v. Sneharani, AIR 1949 Cal. 87 ; Gurcharan Singh v. Smt. Waryam Kaur, AIR 1960 Punj. 422 ; Kamala Bai v. Rathnavelu, AIR 1965 Mad. 88 ; Jinarthanammal v. P . Srinivasa, AIR 1964 Mad. 482

[21] Raj Kumari Agarwala, ‘Restitution of Conjugal Rights under Hindu Law : A Plea for the Abolition of the Remedy’ (1970) 12 Journal of the Indian Law Institute 257, 266

[22] Raj Kumari Agarwala, ‘Restitution of Conjugal Rights under Hindu Law : A Plea for the Abolition of the Remedy’ (1970) 12 Journal of the Indian Law Institute 257, 268

[23] Flavia Agnes, ‘Law and Gender Inequality’ in Women and Law in India (OUP 2004)

[24] Raj Kumari Agarwala, ‘Restitution of Conjugal Rights under Hindu Law : A Plea for the Abolition of the Remedy’ (1970) 12 Journal of the Indian Law Institute 257-268

Author Details: Snigdha Kajaria and Shuchi Agrawal (Jindal Global Law School (O.P. Jindal Global University)

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

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