The nationwide lockdown had brought with itself an increased number of domestic violence cases in India. The National Commission of Women has witnessed a surge in the number of reported cases since the lockdown. Even at the global scale, the WHO has recorded a similar spike in the domestic abuse cases. In this context, it is imperative for us to understand that how gender-based violence could sometimes be perpetuated by law itself. This article examines the draconian remedy of restitution of conjugal rights in India and argues that it violates women’s right to live with dignity, right to privacy, right to equal protection and right to non-discrimination under the Indian Constitution and infringes upon numerous international covenants and obligations.
Section 9 of the Hindu Marriage Act,1955 and Section 22 of the Special Marriage Act,1954 provide for a remedy of restitution of conjugal rights through which a husband or wife can compel his/her spouse to live with him/her. The Andhra Pradesh High Court in T. Sareetha v. T. Venkata Subbaiah(1983) declared these provisions to be unconstitutional as they were discriminatory against women and violated their right to privacy and autonomy. Subsequently, the Delhi High court in Harvinder Kaur v. Harmander Singh Choudhary(1984) upheld their constitutionality and this view was also endorsed by the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha(1984). Therefore, women’s right to privacy and autonomy over their bodies was held to be subservient to the cause of protection of the social institution of marriage. However, the Supreme Court has recently agreed to review its position vis-à-vis the impugned remedy in light of its recent judgement of KS Puttaswamy v Union of India(2017) wherein it held the right to privacy and autonomy over one’s body to be a fundamental right under Article 21 of the Constitution of India.
II. CONSTITUTIONAL INVALIDITY OF THE IMPUGNED PROVISIONS
The Bombay High Court in Dadaji Bhikaji vs Rukhmabai(1885) highlighted that this remedy does not have any foundation or recognition in either Hindu law or any other personal law system of India. It should be noted that the remedy originated from feudal English law which considered wives to be the ‘chattel’ of the husband and is liable to struck down as the Supreme Court in Joseph Shine vs UOI(2018) has held that a law based on patriarchal conceptions of wives being treated as property of husbands entrenches gender stereotypes and is therefore violative of the non-discrimination protection of Article 15(1) of Indian Constitution.
The impugned provisions also violate the Right to Equality under Article 14 of the Indian Constitution as the remedy is used “almost exclusively by the husband”. It is imperative that our understanding of implication of a law is in conjunction to the social, political, historical and cultural contexts in which it operates. Therefore, upon analysing the inevitable consequences of these facially neutral provisions in the context of the deeply embedded unequal power structures in the patriarchal families of Indian society, the disproportionate impact of this law on the female class becomes apparent. In this respect, Justice Choudhary has aptly held that “bare equality of treatment regardless of the inequality of realities is neither justice nor homage to the constitutional principle”.
Supreme Court in Saroj Rani defended this remedy on the ground that it aids in prevention of break-up of marriages. Can such social purpose override fundamental rights of individuals? Ronald Dworkin in his seminal work “Taking Rights Seriously” has argued that a collective goal is not a sufficient justification to deny individuals their rights or to impose injury upon them. Moreover, “Familial structures cannot be regarded as private spaces where constitutional rights are violated” and therefore Article 21 rights such as right to personal autonomy and dignity of an individual cannot be compromised in the name of family life.
The enforcement of such a remedy has severe human rights consequences. It takes away the choice to have sexual intercourse from the wife and transfers it to the state. Moreover, the wife is forced to practically surrender her choice to allow or deny her body to be used as a vehicle for procreation to the state. Therefore, it is violative of Article 21 as “personal choices governing a way of life are intrinsic to privacy and dignity” and this law takes away these personal choices.
The Delhi High Court in Harvinder Kaur held that because the aim of Section 9 is “consortium” and not “cohabitation”, it does not make sexual intercourse compulsory and only requires the wife to share the same household as the husband. It should be noted that firstly, at a pragmatic front, the above understanding is problematic because the wife is at an inevitable risk of forced sexual relations due to the lack of remedy for marital rape in India. This violates bodily autonomy of the wife as the Supreme Court in Navtej Singh Johar v UOI(2018) has included “sexual choices” to be an essential attribute of autonomy. Secondly, at a principled level, the very act of forcing a wife to live with her husband is per se violative of her right to privacy and individual autonomy because under the conception of privacy in Puttaswamy, an individual has a right to be left alone (reservation of private space) which is founded on the principle of autonomy and ability to make personal choices. Therefore, irrespective of the aim of Section 9, Article 21 stands violated.
III. INFRINGEMENT OF INTERNATIONAL COVENANTS AND OBLIGATIONS
The Impugned remedy also violates several international commitments of India. In particular, Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights stand violated which prohibit arbitrary and unlawful interference into the privacy of individuals. Secondly, Article 16(2) of UDHR, Article 23(3) of ICCPR and Article 16(1)(b) of Convention on Elimination of All Forms of Discrimination against Women highlight the importance of free and full consent for entering into marriage. The same requirement should be extended to continuance of marriage also as Article 16(1) of UDHR and Article 23(4) of ICCPR grants equal rights as to marriage, during marriage and at its dissolution. Therefore, forced cohabitation should be held unlawful. The element of free consent is also highlighted in Article 10 of International Covenant on Economic, Social and Cultural Rights. Lastly, under Article 2(f) and 16(1) of CEDAW, India must abolish this law as it discriminates against women in the context of marriage.
IV. RECOMMENDATIONS BY MINISTRY OF WOMEN AND CHILD DEVELOPMENT AND LAW COMMISSION OF INDIA.
The UK Law Commission recommendations led to the remedy being abolished in England(1970) on the ground that it is not an effective method of attempting a reconciliation. The remedy stands abolished in other common law jurisdictions also viz. Ireland, Australia and South Africa. Secondly, The Ministry of Women and Child Development in 2015 instituted a High Level Committee to look into Status of Women and Children in India and it observed that the remedy is being counterproductive because it is being used by the husbands to suppress complaints of cruelty and defeat genuine claims of maintenance. Further, it held that the remedy violates human rights of wives by forcing them to cohabit with their husband. Lastly, a Consultation Paper on Reform of Family Law published by the Law Commission of India observed that the remedy has outlived its utility and that it is not relevant anymore because existing matrimonial laws already protects conjugal relations.
A draconian remedy that holds women’s right to privacy and autonomy over their bodies to be subservient to the cause of protection of the social institution of marriage should not have any place in the rights-based framework of the Indian Republic. Therefore, In light of the constitutional invalidity, the violation of international covenants and the mentioned recommendations, it is hoped that the Supreme Court would strike down the remedy of restitution of conjugal rights and free the women of this country from the shackles of this regressive, violative, stereotyped and patriarchal law.