Supreme court says: forcing wife to 'cohabit' with the husband violates fundamental rights

The Supreme Court has recently agreed to hear a public interest litigation against the provision for reinstatement of constitutional rights that empowers the court to force a person to live effectively with a spouse against his will is. A bench of former CJI Ranjan Gogoi and Justice Sanjiv Khanna has referred the matter to a three-judge bench for hearing.

Section 9 of the Hindu Marriage Act includes a provision for the restoration of conjugation rights, according to which, if one of the spouses withdraws himself from the other's society, without reasonable excuse, the other party who Stimulated, the legal right is to petition for the restoration of constitutional rights. The court, if satisfied that there is no legal basis for the application, will be denied and, based on the veracity of the statements in the petition, may pass a decree for the restoration of constitutional rights.

Constitutional Validity of Provision of Section 9 HMA

The constitutional validity of the provision has been repeatedly debated. The earliest instance was in 1983 before the Andhra Pradesh High Court. There was the case of Saritha vs Venkat Subbaiah. It was argued before the court that this provision is against the Article 21 guarantee of fundamental rights, liberty and privacy of an individual. Constitution. 

Furthermore, it was argued that being available to both husband and wife, who are inherently in an unequal position, this provision was a violation of the right to equality by violating the law of equal protection of laws. The court agreed with these arguments and stated that the decree, in fact, forced a reluctant wife to have sex with her husband, violating her physical autonomy. The court repealed Section 9 of the Hindu Marriage Act, declaring it as a violation of Article 14 and Article 21 of the Constitution. 

Subsequently, after less than a year, the question was put before the Delhi High Court in the case of Harvinder Kaur v. Harmander Singh, but here, the said case was set aside by the decision of the Andhra Pradesh High Court. The Supreme Court finally settled the confrontation between the two judges, upholding the views given by the Delhi High Court in the judgment of Saroj Rani v. Sudarshan Kumar Chadha, stating that the decree is intended only as an inducement to the spouse. To live together, and it does not force a reluctant wife to engage in sexual relations with a husband. The purpose was only to bring "cohabitation" between the spouses, and therefore, it focused only on the "union".

However, what the Supreme Court and Delhi High Court felt was probably unsuccessful, is that marital rape is legal in India. The husband can very well force the wife to have intercourse with him, with no consequences, avoiding a long drawn divorce petition based on cruelty or a domestic violence petition based on sexual violence, both. There are no criminal offenses. Therefore, by forcibly subjecting a reluctant wife to "cohabitation" and "consortium", the decree, in effect, makes the wife a subject of forcible intercourse with the husband, and in the process, she is subjected to her physical autonomy, dignity. , And a fundamental freedom to make his own decisions concerning his life and body. 

Remedy for Restoration of Conjugal Rights

The remedy for the restoration of conjugation rights violates the very basic essence of a person, their existence, to determine their decision with whom to live. In a marriage the two spouses are not always on the same footing, and in our country, which is highly patriarchal, the wife is mostly - socially as well as financially - dependent on the husband. In fact,

in practice, in India, conjunctive rights restoration measures are commonly used by husbands to present themselves to their wives in their company, and an armor against cases of potential cruelty and domestic violence by wives. In form of.

It has been increasingly recognized that the law has a duty to intervene in the domestic sphere to protect the rights of individuals, which can no longer be violated under the guise of "family values" and "rites". The right to physical integrity is abolished by the state which controls a person's life by forcing them to live with their abusive husbands.

The measure of restoration of constitutional rights has been criticized by prominent jurists and sociologists and has been abolished in major countries including Britain, Ireland, Australia and South Africa. It is high time that India followed suit.