Make it fair for women, revisit conjugal rights

As family laws relating to marriage become more progressive, recognising the rights of different communities, it becomes important to keep existing laws in line with progressive constitutional principles. One example of a law that needs scrutiny is the remedy of Restitution of Conjugal Rights (RCR), which forces the spouse to cohabit with the other spouse even after withdrawing from the society of the other, as provided under Section 9 and Section 22 of the Hindu Marriage Act 1955 and the Special Marriage Act 1954, respectively. The petition challenging the constitutionality of RCR is already pending before the Supreme Court.

The constitutionality of RCR has also been questioned in the past. For the first time, the constitutionality of RCR was challenged before the Andhra High Court in the T Sareetha vs. T Venkata Subbaiah (1983) case, where the court held Section 9 as unconstitutional and opined that “Section is a savage and barbarous remedy, violating the right to privacy and human dignity guaranteed by Article 21 of our Constitution.”

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Later, the Delhi High Court in Harvinder Kaur vs. Harmander Singh Choudhry (1983) held RCR as constitutionally valid, which was later upheld in Saroj Rani vs Sudarshan Kumar Chadha (1984) by the Supreme Court. In the past decade, the apex court has passed many landmark judgements widening the ambit of fundamental rights, which has invited another petition challenging the constitutionality of RCR before the Supreme Court.

The forcing of a spouse to live with other spouse under RCR is in violation of the rights to equality and privacy. The right to equality provided under Articles 14 and 15 of the Constitution guarantees equality before law and the prohibition of discrimination on the ground of sex.

RCR can be enforced by both husband and wife, which gives the impression of a gender-neutral remedy, but it is inherently discriminatory against women if seen in a social context. As observed by Justice Choudary in the T Sareetha vs. T Venkata Subbaiah (1983) case, RCR treats husband and wife as equals who are inherently unequal and therefore violate the rule of equal protection of the law.

The court in Harvinder Kaur vs. Harmander Singh Choudhry (1983) discouraged the introduction of constitutional laws such as Articles 14 and 15 in the domestic relationship of husband and wife, but in Joseph Shine vs. Union of India (2018), the court changed its position by observing that even “familial structures cannot be regarded as private spaces where constitutional rights are violated.”

RCR also violates individual autonomy and dignity protected under the right to privacy. In Harvinder Kaur vs. Harmander Singh Choudhry (1983) case, the court, while upholding the validity of Section 9, applied the reasoning that in T Sareetha vs. T Venkata Subbaiah (1983) case, the court confused cohabitation under Section 9 with sexual intercourse, whereas Section 9 only compels cohabitation, not sexual intercourse. Thus, Section 9 does not violate individual autonomy and dignity, as it does not force sexual intercourse.

However, such reasoning cannot stand after the K S Puttaswamy vs. Union of India (2017) judgement, which widened the scope of Article 21 by incorporating the right to privacy, which can be interpreted to include the right to cohabit with a person of one’s choice. Therefore, compelling a person to even cohabit under Section 9 will be against Article 21.

Another argument against the reasoning in the Harvinder Kaur case is that the court failed to consider forced sexual intercourse as a likely outcome of compelling a wife to cohabit with her husband. Because forced sexual intercourse in marriage, i.e., marital rape, is not an offence, compelling a wife to live with her husband indirectly amounts to forced sexual intercourse, which is a violation of individual autonomy and bodily dignity. As held in Joseph Shine vs. Union of India (2018), “sexual choices are an essential attribute of autonomy,
intimately connected to
the self-respect of the
individual.”

Apart from forced sexual intercourse, another deleterious consequence can be the filing of an RCR by the husband to defeat the claim of the wife for maintenance, as mentioned in the Report of the High Level Committee on the Status of Women in India, 2015. Forcing the cohabitation of a wife with her
husband in a marriage that has turned sour also increases the risk of women
being subjected to domestic violence.

(The writer is a fourth year student at the National Law University, Jodhpur)