Justice RF Nariman Led SC Bench To Hear Petition Challenging Provisions Of Restitution Of Conjugal Rights Tomorrow

The Supreme Court bench headed by Justice Rohinton Fali will hear the petition challenging the provisions dealing with restitution of conjugal rights.

The Public Interest Litigation filed by Ojaswa Pathak challenges Section 9 of the Hindu Marriage Act, section 22 of the Special Marriage Act and Rules 32 and 33 of Order XXI of the Code of Civil Procedure. The petitioner, in its plea, contends that the court-mandated restitution of conjugal rights amounted to a "coercive act" on the part of the state which violates one's sexual and decisional autonomy, right to privacy and dignity, all of which come within the purview of right to life and personal liberty under Article 21.  

In March, 2019, the court had sought response from the Union Government in this regard. 

Section 9 of the Hindu Marriage Act provides that When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Special Marriage Act has also similar provision. Rules 32 and 33 of Order XXI of the CPC deals with the execution of the decree for restitution of conjugal rights.

""The remedy of restitution of conjugal rights was not recognized by any of the personal law systems of India. The same has its origins in feudal English Law, which at that time considered a wife to be the chattel of the husband. The United Kingdom itself has abolished the remedy of restitution of conjugal rights in 1970.", the plea contends. The Petitioner also seeks reconsideration of the Supreme Court judgment in Saroj Rani v Sudarshan Kumar Chadha AIR 1984 SC 1562 by which it had set aside the Andhra Pradesh High Court's decision quashing section 9 of the Hindu Marriage Act. In the said judgment, the court had made the following observations

1. In India conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself. There are sufficient safeguards in Section 9 of the Hindu Marriage Act to prevent it from being a tyranny. 
2. Section 9 is only a codification of pre-existing law. Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an injunction.
3. Section 9 of the Act is not violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of execution in cases of disobedience is kept in view.

4. It is significant that unlike a decree of specific performance of contract; a decree for restitution of conjugal rights, where the disobedience to such a decree is willful i.e. is deliberate, might be enforced by attachment of property. Where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only the properties have to be attached, is provided for. This is so to enable the Court in appropriate cases when the Court has decreed restitution for conjugal rights to offer inducement for the husband or wife to live together and to settle up the matter amicably. It serves a social purpose, as an aid to the prevention of break-up of marriage.