By Munibar Barui
Recently, the Supreme Court is likely to commence hearing a renewed challenge to the provision permittingreimbursement of conjugal rights under Hindu Marriage Act of 1955.
The concept of conjugal rights is present under the Section 9 of the Hindu Marriage Act of 1955. This section is currently being challenged in this plea.
The section 9 observes that: “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 of 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”.The law is being challenged now on the foremost grounds that it is violative of the “fundamental right to privacy” (under Article 21 [Puttaswamy vs. State of India, 2019]).
The plea by proposed two law students who opined that a court-mandated restitution of conjugal rights is a form of “coercive act”, which violates one’s sexual and decisional independence, and right to privacy and self-respect (by the state). Nonetheless, the provision of compensation of conjugal rights has been defended by the Supreme Court in earlier judgements, but legal experts have pointed out that the nine-judge Bench’s landmark verdict in the privacy case set the stage for potential challenges to several laws such as criminalisation of homosexuality, marital rape, restitution of conjugal rights, the two-finger test in rape investigations, etc.Although the law is “ex-facie” (on the face if it) gender-neutral since it allows both wife and husband to seek restitution of conjugal rights, the provision unreasonablydistresses women. The women folks are often withdrawn to marital homes under such provision, and given that marital rape is not a crime, leaves them vulnerable to such forced cohabitation. Furthermore, in this case it will also be argued whether the state can have such a convincing interest in shielding the institution of marriage that it allows a legislature to impose cohabitation of spouses. The author works as a reporter under the banner of Sattachintan. He is a writer, an avid aquarist, a tech-savvy individual with a will to do something in life.