CONSTITUTIONAL PERSPECTIVE OF RESTITUTION OF CONJUGAL RIGHTS


During the time of presenting the arrangement for restitution of conjugal rights in the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955, there were warmed discussions in the Parliament for and against it. It is huge to take note of that in 1983-1984, the sacred legitimacy of section 9 of Hindu marriage act 1955 turned into a topic of discussion because of these case laws:

The constitutional validity of the provision for restitution of conjugal challenged before the Andhra Pradesh High Court in ​Sareetha v. T. Venkatasubbaiah​[1]. In this case, Sareetha claimed that section 9 of the Act is liable to be struck down as violative of the fundamental rights in part III of the Constitution of India, specifically Article 14 and 21. Justice Choudary held that section 9 is a savage and barbarous remedy, violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution. It denies the women her free choice whether, when, and how her body is to become the vehicle for the procreation of another human being. The woman loses her authority over her most confidential decisions. Clearly, therefore, the right to privacy guaranteed by Article 21 is flagrantly violated by a decree of restitution of conjugal rights. As a result, section 9 of the Hindu marriage act 1955 was unconstitutional.

In ​Harvinder Kaur v Harminder Singh​[2] case Justice Rotagi recognized restitution of conjugal rights as an additional ground for divorce”.

In ​Shakila Banu v. Gulam Mustafa​[3], 1970, the Hon’ble High Court observed: “The concept of restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into effect, which guarantees equality of status, personal liberties and opportunity to women and men alike and further confers powers for establishing a special provision for their protection and safeguard to the state.”

Ultimately Supreme Court in ​Saroj Rani v. Sudharshan​[4]​ gave a judgment which was consistent with the Delhi High Court views and upheld the constitutional validity of Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in ​Sareetha v. T. Venkatasubbaiah​[5]​. In para 87 the learned Judge mentioned restitution of conjugal rights is an archaic remedy “I cannot agree that S.9 of Hindu Marriage Act is unconstitutional howsoever the remedy may be obsolescent or outdated with the times. The restitution decree in the strategy of the Act is preparation for divorce if the parties do not come together”. Para 91 shows the true intention of the Judge “in the end I will repeat what I have said before it is for the legislature to abolish the remedy of restitution and not for the Courts to regard it down on the ground that it is unconstitutional. In my opinion, S. 9 is perfectly valid”. The judge seems to do away with the remedy, but the existing laws are tying his hands.

The court observed that the basis of the section is to bring out cohabitation between estranged parties so that they can live together. That is the confidentiality of home and conjugal life neither article 21 nor Article 14[6] has any place.

THE RESTITUTION OF CONJUGAL RIGHTS AND RIGHT TO LIFE

The Right to Life of a person is considered as the most important part of a person’s fundamental rights. It is stated in the Constitution as follows;

“​No person shall be deprived of his life or personal liberty except according to the procedure established by law​”.​[7]

Equity does not mean physical uniformity amongst a couple, but rather it implies fairness of thought, activity, and self-acknowledgment. In addition, it is chronologically erroneous for instructed ladies to be constrained by State capacity to go and live in a place, wherefrom they have pulled back.

The right to privacy isn't explicitly ensured in the constitution, it is verifiably given in Article 21​[1]​of the constitution. There has been no settled meaning of security. Subba Rao J. in Kharak Singh v State of U.P[8]" any meaning of appropriate to security must incorporate and ensure the individual affections of the home, family, marriage, parenthood, reproduction, and youngster raising". In Bai Jiva v. Narsing Lalbhai​[9]​ the Bombay High Court held that the Courts have no privilege to drive the spouse to come back to her significant other without wanting to. This impulse of the Court goes about as a mental restriction on a person. The US Supreme Court in Eisenstaedt v. Baird​[10] held "the conjugal couple isn't an autonomous substance with a brain and its very own heart, however a relationship of two people each with a different scholarly and passionate cosmetics. On the off chance that the privilege of security implies anything, it is the privilege of the individual wedded or single, to be free from baseless legislative interruption into issues so in a general sense influencing a man". The position is very much clarified by Justice Subba Rao in Kharak Singh's case​. All things considered he said that "the privilege to individual freedom takes in right not exclusively to be free from confinement put on his developments yet in addition free from infringements into his private life… In the final resort, a man's home where he lives with his family is his 'stronghold': it is a bulwark against infringement against his own freedom. On the off chance that physical limitations on a man's development influence his own freedom, a physical infringement on his private life would influence it to a substantial degree. In reality, nothing is more harmful to a man's physical bliss and wellbeing than a figured obstruction with his protection. We would along these lines characterize appropriately to individual freedom in Article 21 as a privilege of a person to be free from confinement or infringements forced straightforwardly or by implication realized by a computed measure".

[1] AIR 1983 AP 356 [2] AIR 1984 Delhi 66 [3] 1984 AIR 1562 [4] AIR 1971 Bom 166 [5] AIR 1983 AP 356 [6] Article 21 nor Article 14 of the Constitution of India [7] Article 21 Constitution of India [8] 1963 AIR 1295 [9] (1927) 29 BOMLR 332 [10] 405 U.S. 438 (1972)

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