Conjugal Rights and its Constitutional Validity: Balabavithra M & Prawin Subash K

CONJUGAL RIGHTS AND ITS CONSTITUTIONAL VALIDITY

Balabavithra M [1]   Prawin Subash K  [2]

School of Law, SASTRA University

ISSN: 2581-8465

ABSTRACT

Conjugal rights give you the right to seek the help of the law to bring your spouse back to you, to live with you, and favor your sexual needs, even if the significant other does not want to do it willingly. This right aimed to protect the institution of marriage but it ended up creating a large number of unhappy marital relationships for the present society during the course of time. This in turn produced a mass of unhappy families in this country. The conjugal rights have been proved to have violated Article 14, 19, and 21 of the constitution very clearly in various cases but remain in enforcement for the sake of holding a high number of successful Hindu marriages in this Indian Society.

This article explains the objectives of conjugal rights along with the dissection of Section 9 of the Hindu Marriage Act, 1955. The article envisages to discuss the legal standards of this right along with the reasons for its abolition in England. The article traces the historical path of this right both in India and abroad. It provides the vivid timeline of the conjugal rights in India and the major landmark judgments provided for the same. The expose also evaluates the current status of the conjugal right in a developing country like India.

KEYWORDS: Family law, Constitution, Conjugal right, History, Reasons, petition, abolition

CONJUGAL RIGHTS AND ITS CONSTITUTIONAL VALIDITY

CONJUGAL RIGHTS means Matrimonial rights; the right which husband and wife have to each other’s society, comfort, and affection.[1] The word Conjugal means of or belonging to marriage or the married state; suitable or appropriate to the married state or married persons; matrimonial; connubial[2] Conjugal rights also means the sexual rights or privileges implied by and involved in the marriage relationshipthe right of sexual intercourse between spouses[3] and according to Cambridge dictionary, conjugal rights mean the right to have sex with the person you are married to.[4]

Conjugal rights give you the right to seek the help of the law to bring your spouse back to you to live with you and favor your sexual needs, even if the significant other does not want to do it willingly. Sounds pleasing and simple now, perhaps this will be a nightmare if the other person has taken this right at hand.

The major aim of this section was to protect the institution of marriage and at once on the occasion of the succession of such a suit the husband and the wife have to follow the decision of the appropriate court and consider this their happily-ever-after and continue to cohabitate.

THE FOLLOWING ARE THE OBJECTIVES OF CONJUGAL RIGHTS:

  1. The principal object of restitution of conjugal rights, incorporated under Section 9 of the Hindu Marriage Act, is to avoid shattering of marriage and to safeguard it.
  2. This section aims at granting either spouse a matrimonial remedy if the married partner is staying away from them and not confuse the case as a case of divorce.[5]
  3. It grants equal protection to the sexes and is gender-neutral, following the amendment in section 13(1-A) which enables either spouse to file for the judicial separation, indeed the party who is decided guilty in the restitution proceedings.[6]
  4. It aims at shielding either spouse’s conjugal rights by not permitting the husband/wife to stay away without reasonable ground.
  5. If any spouse stays away from his/her married partner, the later can file the suit asking restitution of conjugal rights under this section, and if the case wins, they should cohabit again.
  6. It aims at consortium and compromise to preserve the stability of a marriage, and not solely sex.[7]

HISTORY

In England:

Restitution of Conjugal rights was in usage in the Ecclesiastical courts of England, and it has sources in the Jewish roots. Desertion was not deemed to be a matrimonial offense in the old Ecclesiastical courts, the solitary relief possible to the deserted was getting a decree of conjugal rights, and the omission to act according to the decree was punishable with Excommunication. This decree can be given against a husband or wife, who has abandoned the other, only if desertion is proved. If this decree is passed deserter should live again with the spouse.[8] The Divorce and matrimonial causes the court granted the decree of restitution later.

The Ecclesiastical courts act of 1813, replaced the ex-communication, with imprisonment, not more than 6 months.[9] The Matrimonial Causes act 1884, modified the imprisonment punishment for not complying with the decree of restitution of conjugal rights, and deemed that failure to be desertion and gave the right to either spouse for judicial separation, and if the husband has committed adultery, immediate divorce was granted.[10]

The Matrimonial Causes act 1857, gave the right to the husband to divorce wife, for adultery and the wife will be given the right to divorce when the husband has committed adultery with incest, bigamy, cruelty, sodomy, bestiality, rape, and desertion for more than 2 years[11], but the Matrimonial causes act 1923 gave wife, right to divorce for adultery solely.[12]

The Matrimonial causes act 1884 was revoked by The supreme court of Judicature (consolidation) act 1925, stating that the omission to act by the restitution decree is a ground for divorce, but not itself as desertion, but was held regarding custody of children and property.[13]

In 1970, restitution of conjugal rights was repealed by the Matrimonial Proceeding and Property act (1970)[14], recommended by the Law commission in 1969[15]

Abolition of restitution on conjugal rights in England

A Law commission set in 1969 proposed that the restitution of conjugal rights can be struck down, as it is old and hardly relevant. In the report, they have stated, that the decree making the couple live together is barely fit of compromise.[16] The law commission felt the law is irrelevant to the contemporary era and suggested the parliament to strike down it. The report has cited a case, Nanda v Nanda[17], where a wife gets a decree of restitution of conjugal rights, and the court gives an injunction in favor of the husband, restraining her from the husband. The law commission settled in their report that the decree of restitution is being used infrequently and is not a just remedy.

In India :

The idea of conjugal rights had origins in the Jewish Law and was entirely new to India, and even Dharmasastra and Muslim law didn’t discuss it, according to Paras Diwan. The British Colonization incepted this code into its colonies, which included India. Due to the lack of a statutory law including all religions, India enacted this law. This concept of restitution was first introduced in the case of Moonshee Balzoor Ruheem vs. Shumsoonissa Begum[18] before the Privy Council. The Privy Council held that the Restitution of conjugal right is more likely enforcement of the right to a consortium in a contract, as Muslim marriage is a civil contract, and also held that the restitution decree should be provided according to the Mohammadan law and not on the basis on Equity, justice, and good conscience.[19] 

In India Restitution of conjugal rights are available to all religions and communities, for

Hindus in Section 9 of the Hindu Marriage act (1955)[20]

Muslims in The general law and section 2(ii) of Dissolution of Muslim marriages Act,1939[21]

Christians in Section 32[22] and Section 33[23] of the Indian divorce act (1869)

Parsis in Section 36 of the Parsis Marriage and Divorce act (1936)[24]

And in Section 22 of the Special marriages act[25] for couples married under the Special Marriages act.

In Scotland

In Scotland, the restitution of conjugal rights principle is termed Adherence, which made the couple to adhere or live together. The Adherence principle was abolished by Section 2 (1) of the Law Reforms (husband and wife) (Scotland) act in 1984, which restricts either spouse to file for the decree of adherence before any Scotland court.[26]

In Ireland

Restitution of conjugal rights was in usage in Ireland, and failure to comply with the decree was punishable with imprisonment not exceeding six months[27]. The Law reform commission in its report recommended for the abolition of the proceeding of conjugal rights in 1983[28] and, this principle was abolished by section 1 of the Family Law Act of 1988[29].

In Australia

The principle of Conjugal rights was in practice in Australia and was abolished by Section 8 (1) of the Family Law act 1975[30]. According to the section, no court has the power to grant a decree of restitution of conjugal rights, but According to Section 144 (2), the court can make an injunction order to render conjugal rights, which is complicated[31]

In Canada

Family law in Canada varies in each province, and hence restitution of conjugal rights too. It is a component of most provinces, but some have abolished it. In British Columbia[32], Manitoba[33] , and, Alberta[34] the concept of restitution of conjugal rights had been abolished. In Saskatchewan, the idea of Restitution of conjugal rights was totally abolished by the Family Maintenance Act[35].

CONJUGAL RIGHTS AS PER HINDU MARRIAGE ACT, 1955:

Before we take a stand on the righteousness of this right, let’s know a few details about this section.

“Sec 9 of the HMA says 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 with 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.
  • Explanation: Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from society.”[36]

i.e., The husband/wife can invoke their conjugal rights (right to stay together) when the significant other leaves them without a valid reason.

The conditions for allowing petitions under this section:

  • When Valid marriage between the parties
  • The spouses should not be staying together.
  • When withdrawal of the respondent without any reasonable cause/excuse
  • When The court is satisfied by the credibility of the petitioner’s statement

(or) there is no reasonable legal ground to withhold the relief from being granted.

For a better analysis let’s dissect this section:

  • In this section “Withdrawal from the society” means the refusal to live together / the refusal to have marital intercourse / the refusal to give comfort and company.
  • And for the matter at the instance, the burden of proof lies on the respondent to produce a reasonable excuse/cause for his/ her withdrawal in the first place.
  • Reasonable excuse/cause means the matrimonial misconduct on the part of the spouse (eg. The violence on the part of the husband, husband having a secret concubine, or any baseless allegations of unchastity on either part )

TIMELINE OF SECTION 9, HMA:

1866 – The remedy of “Restitution of Conjugal rights” was first used in Moonshee Bazloor v. Shamsoonaisaa Begum[37] adopting it from England by the Privy Council.

1970– The remedy was abolished in England

1983 – In Sareetha v. Venkata subbaiah[38] was held to be inconsistent with the constitution stating that :

  • the section forced the petitioner (Sareetha, a famous cinema star ) to have marital intercourse with her husband
  • the section deprived her fundamental right to carry on business guaranteed under Art.19
  • the section also lacked to provide the right to privacy for the petitioner (Art.21)
  • Moreover, the section treated the petitioner unreasonably discriminating her rights based on her sex as a female. (Art.14)

The section forced Sareetha to go and live with her husband together and provide the company. By staunchly following this section Sareetha realized that she will lose her right over her own body and filed the petition.

Justice. P. Choudary concluded that Section 9 of The Hindu Marriage Act, was null and void, and he held that restitution of conjugal rights violates the Right to privacy and human dignity enshrined under Article 21 of the Indian constitution. He states this relief, which forces the couple to live together is a barbaric remedy, as it destroys individual rights and sexual liberty. Justice. P. Choudary said it is not righteous to force a married couple to cohabit together, as it includes sexual cohabitation, which is a compelled one. Many countries have struck down the restitution of conjugal rights, as they find it irrelevant or unjust.

Thus, when the GOLDEN TRIANGLE of Art. 14, 19, and 21 were affected in T.Sareetha v. Venkata Subbaiah AIR 1983 AP 356 the Hon’ble SC then, struck down Sec. 9 of the HMA.

The judgments that followed started quoting Sareetha’s case. In cases like

  • Selva Madhavan v. Sulochana

Sulochana v. Selva Madhavan, 1974 TLNJ page 351

It was held before the court, that whether in the case, the wife has gone away from the society of the husband without any reasonable basis.[39] The Court held, that according to the Hindu fundamental Law, the principal duty of a wife is to stay with her husband under his protection, and said that the court cant act accordingly to this, where the Hindu husbands exercise these rights.[40] The court settled, stating, that a decree of restitution of conjugal rights can be passed, only if the wife has left entirely form the society of the husband without a fair reason.[41]

  • Reba rani  v. Ashit

Sm. Rebarani Sen Gupta vs Ashit Sen Gupta on 25 June 1964 Equivalent citations: AIR 1965 Cal 162

The wife appealed upon the Decree of restitution of conjugal rights awarded in favor of her husband, by the trial Judge. The husband said that he had made multiple efforts to bring her home, with the aid of family and friends, and the wife’s defense was cruelty and torture. The High court observed that the cruelty incited upon the wife, is proved in the letters of the husband, where he admits guiltiness for cruelty, and the court struck down the decree of restitution.[42] It was held that there should be a reasonable ground for him/her to live individually or leave home and that reason should be proved.[43]

  • Harivinder Kaur v. Harmander Singh

Harvinder Kaur vs Harmander Singh Choudhry on 15 November 1983 Equivalent citations: AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187

This appeal to the High court knocked the constitutional validity of Sec 9 of the Hindu Marriage act[44]. The high court dismissed the appeal and held that the wife moved away without a just ground and upheld the decree given by the trial judge.

It was argued that Section 9 was against Article 14 and should be struck down, Justice Rohtagi, noted that the amendment “either party to the marriage”[45] in Section 13 (1-A) and said even the guilty party in the restitution proceeding can file for divorce according to Section 13(-A) ii[46]

Justice Rohtagi stated.

“There is complete equality of the sexes here and equal protection of the laws. I do not see how section 9 can be struck down as voltaic of’ Article 14 of the Constitution. Constitutional Law and Family Law.[47] One general observation must be made. The introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14- has anyplace”[48]

Justice Rohtagi, stated, that the sole reason for the decree of restitution of conjugal rights is for making the couple to live together and for a compromise, and not alone for sex, and said that he sees nothing inhuman in the law.

1984 – The Delhi HC gave the judgment that rescinded the judgment in Sareetha’s case.

  • The supreme court affirmed the former Delhi HC’s judgment and declared that Sec. 9 is constitutional in Saroj Rani v. Sudharshan Kumar AIR 1984 SC 1562

Justice Sabyasachi Mukhtaji held that section 9 of the Hindu Marriage Act, cannot be admitted violating Article 14 and 21 of the Indian constitution. He also stated that Hindu marriage is a traditional and a sacred act, and section 9 concentrates on saving the marriage, making the spouses live together. According to this judgment section, 9 concentrate on protecting the institution of marriage.

CONSTITUTIONAL VALIDITY :

Under Art. 21 of the constitution, no person shall be deprived of his life or personal liberty except according to ‘procedure established by law.’[49] In the People’s Union for Civil Liberties v. U.O.I.,[50] the SC held that the “right to privacy is a part of the right to ‘life’ and ‘personal liberty’ enshrined under Art. 21 of the Constitution.” The said right cannot be curtailed ‘expect according to the procedure established by the law.’ In Maneka Gandhi v. U.O.I.,[51] the Court upheld the American concept of ‘Due process of law’ which states that the procedure must be just, fair and reasonable to deprive the person’s life and personal liberty.

Conjugal rights let the court force the spouse to provide physical company to the other. And this conjugal rights though it portraits to look like a “procedure established by law”, it is a mere violation of the right over one’s body which lets to the violation of the right to dignity which forms the part of the right to life under Art.21 of the constitution.

The recent Justice Puttaswamy case has provided the right to privacy a different scope, allowing an individual’s privacy being protected in a private space which means, the law does not enter into the personal space. “Home “is also considered as one’s own personal space. Thus, causing a clear violation of the right to life guaranteed under Art.21 of the constitution.

CONCLUSION:

Ever since the day marital rape, domestic violence, and ill-treatment mentally, physically, and emotionally started happening under the name of the marriage, they were only whispered and were ready to be voiced out. Now that many have taken pride and aren’t feeling ashamed to say things out even on an open platform or a courtroom, it is highly expected to be struck down any time soon.

Without the inclination towards any gender, it is to be understood that there are women who rape and there are men who force women to quit jobs for the sake of their marital relationships. But the state should not force anyone to live with the other just to protect the institution of marriage in its country. Marriage isn’t marriage without the element of love involved. If at all any two people choose to live together, they should live together with love. The present laws i.e., Section-125 of the Code of Criminal Procedure and Section- 20 (1) (d) of the Protection of Women from Domestic Violence Act. Allows the partners of living together relationship to draw maintenance from the other. Hence, if the post-pandemic world finds India with more living together relationships than marriages, then it could be due to the high commitment that the “conjugal rights” renders. In this progressive nation, the “conjugal rights” has diluted its purpose of “giving remedy to the aggrieved” and has become the section that makes India the country with a large number of long term committed marriages. A predominant amount of these marriages are not happy and it is to be noted.


[1] https://thelawdictionary.org/conjugal-rights/  (RETRIEVED ON Sep, 15,2020)

[2] . https://www.casemine.com/judgement/us/5914a30badd7b049346a2291 Swanson v. Swanson, 20 A.2d 617, 618, 128 Conn. 128, 135 A.L.R. 849. (RETRIEVED ON Sep, 15,2020)

[3] https://www.merriam-webster.com/dictionary/conjugal%20rights#:~:text=%3A%20the%20sexual%20rights%20or%20privileges,of%20sexual%20intercourse%20between%20spouses  (RETRIEVED ON Sep, 15,2020)

[4] https://dictionary.cambridge.org/dictionary/english/conjugal-rights (RETRIEVED ON Sep, 15,2020)

[5] Tolstoy  Law and Practice of Divorce (6th Edition) p. 99 (RETRIEVED ON Sep, 15,2020)

[6] https://indiankanoon.org/doc/191703/ Harvinder Kaur vs Harmander Singh Choudhry Para 33(RETRIEVED ON Sep, 15,2020)

[7] https://indiankanoon.org/doc/191703/ Harvinder Kaur vs Harmander Singh Choudhry Para 12(RETRIEVED ON Sep, 15,2020)

[8] William Blackstone (1753), Commentaries on the Laws of England, Book 3, Chapter VII “Of the cognizance of private wrongs”, Section 1.2

[9] “Proposal for the abolition of the matrimonial remedy of restitution of conjugal rights” (PDF). (RETRIEVED ON Sep, 15,2020)

[10] https://api.parliament.uk/historic-hansard/commons/1937/apr/16/clause-2-grounds-of-petition-for-divorce#S5CV0322P0_19370416_HOC_53 (RETRIEVED ON Sep, 15,2020)

[11] Nelson, Horace (1889). Selected cases, statutes and orders. London: Stevens and Sons Limited. p. 114 (RETRIEVED ON Sep, 15,2020) 

[12] https://api.parliament.uk/historic-hansard/lords/1923/jun/26/matrimonial-causes-bill (RETRIEVED ON Sep, 15,2020) 

[13] “Proposal for the abolition of the matrimonial remedy of restitution of conjugal rights” (PDF) (RETRIEVED ON Sep, 15,2020) 

[14] “Matrimonal Proceedings Act 1970, s.20” (RETRIEVED ON Sep, 15,2020) 

[15] The Law Commission (Law Com. No. 23) Proposal for the abolition of the matrimonial remedy of restitution of conjugal rights’(RETRIEVED ON Sep, 15,2020) 

[16] “Proposal for the abolition of the matrimonial remedy of restitution of conjugal rights”(RETRIEVED ON Sep, 15,2020) 

[17] Nanda v. Nanda [1986] P. 351

[18] https://www.casemine.com/judgement/in/5779f24ae561096c9312f7ae Moonshee Balzoor Ruheem vs. Shumsoonissa Begum(RETRIEVED ON Sep, 15,2020) 

[19] https://sg.inflibnet.ac.in/bitstream/10603/129388/13/13_chapter%206.pdf (RETRIEVED ON Sep, 15,2020) 

[20] https://indiankanoon.org/doc/322349/ Section 9 of the Hindu Marriage act (RETRIEVED ON Sep, 15,2020) 

[21] https://indiankanoon.org/doc/516363/ Section 2(ii) of the Muslim marriages Act,1939 (RETRIEVED ON Sep, 15,2020) 

[22] https://indiankanoon.org/doc/89797906/ Section 32 of the Indian Divorce act(1869) (RETRIEVED ON Sep, 15,2020) 

[23] https://indiankanoon.org/doc/170654747/ Section 33 of the Indian Divorce Act(1869) (RETRIEVED ON Sep, 15,2020) 

[24] https://indiankanoon.org/doc/734760/ Section 36 of the Parsis Marriage and Divorce act (1936) (RETRIEVED ON Sep, 15,2020) 

[25] https://indiankanoon.org/doc/496766/ Section 22 of the Special marriages act (RETRIEVED ON Sep, 15,2020) 

[26] https://www.legislation.gov.uk/ukpga/1984/15/section/2 Law reforms (husband and wife)(Scotland) act, 1984 (RETRIEVED ON Sep, 15,2020) 

[27] Ecclesiastical Courts Act, 1813, Sections 1, 3 (RETRIEVED ON Sep, 15,2020) 

[28] https://www.lawreform.ie/_fileupload/Reports/rJactitation.pdf Law reforms commission report 1983(RETRIEVED ON Sep, 15,2020) 

[29] http://www.irishstatutebook.ie/eli/1988/act/31/section/1/enacted/en/html#sec1 Family Law act, 1988, Ireland (RETRIEVED ON Sep, 15,2020) 

[30] https://www.abc.net.au/cm/lb/4093556/data/family-law-act-1975-data.pdf Sectoion 8(1) Family Law act, 1975, Australia(RETRIEVED ON Sep, 15,2020) 

[31] https://www.abc.net.au/cm/lb/4093556/data/family-law-act-1975-data.pdf Section 114(2) Family Law act, !975, Australia(RETRIEVED ON Sep, 15,2020) 

[32]  Family Relations Act, R.S.B.C. 1979, c. 121, s. 75

[33]  the Equality of Status Act, R.S.M. 1987, c. E140, s. l(2)

[34] https://www.canlii.org/en/ab/laws/stat/sa-2003-c-f-4.5/latest/ section 103, Family Law act(Alberta) (RETRIEVED ON Sep, 15,2020) 

[35] https://www.canlii.org/en/sk/laws/stat/ss-1990-91-c-f-6.1/latest/ss-1990-91-c-f-6.1.html (RETRIEVED ON Sep, 15,2020) 

[36] Section 9, The Hindu Marriage Act ,1955

[37] 1866-67(11) MIA 551

[38] AIR 1983 AP 356

[39] Sulochana v. Selva Madhavan, 1974 TLNJ page 351

[40] https://indiankanoon.org/doc/1621193/  Sujatha Christiana vs C. Thomas (RETRIEVED ON Sep, 15,2020) 

[41] Sulochana v. Selva Madhavan, 1974 TLNJ page 351

[42] https://indiankanoon.org/doc/1952048/ paragraph 4, Sm. Rebarani Sen Gupta vs Ashit Sen Gupta (RETRIEVED ON Sep, 15,2020) 

[43] https://indiankanoon.org/doc/1952048/, Sm. Rebarani Sen Gupta vs Ashit Sen Gupta (RETRIEVED ON Sep, 15,2020) 

[44] https://indiankanoon.org/doc/322349/ , section 9 of the Hindu Marriage act(RETRIEVED ON Sep, 15,2020) 

[45] https://indiankanoon.org/doc/1646471/ section 13(1-A) of the Hindu Marriage act(RETRIEVED ON Sep, 15,2020) 

[46] https://indiankanoon.org/doc/445141/ section 13(1-A)ii of the Hindu Marriage act(RETRIEVED ON Sep, 15,2020) 

[47] https://indiankanoon.org/doc/191703/ paragraph 33, Harvinder Kaur vs Harmander Singh Choudhry (RETRIEVED ON Sep, 15,2020) 

[48] https://indiankanoon.org/doc/191703/ paragraph 34, Harvinder Kaur vs Harmander Singh Choudhry. (RETRIEVED ON Sep, 15,2020) 

[49] Art. 21, Constitution of India, 1950.

[50] People’s Union for Civil Liberties v. U.O.I., AIR 1997 SC 568.

[51] Supra Note 56.

Leave a Reply

Your email address will not be published.