“We do not create marriage from scratch. Instead, in the elegant language of the marriage ceremony, we enter into the holy estate of matrimony.” Marriage, like any other relationship, will have its ups and downs. Sometimes the rift between the partners gets slightly out of hand, for which the constitution-makers have developed remedies to handle any issue with ease. Under the Hindu Marriage Act, 1955, a remedy is called “restitution of conjugal rights.” If a spouse decides to abandon the marital home, the courts will intervene and order the spouse to return to cohabitation if the desertion is not “reasonable.” In India, the laws preventing sexual assault and rape are primitive. Marital rape is one such offense that, to date, does not have proper punishment. Some parts of society still do not think that marital rape is a grievous offense. The laws involved in it are sexist and only question the dignity of a woman. Hence, it is safe to say that “restitution of conjugal rights” is concerning and blatantly disregards a woman’s right to life with dignity and freedom to livelihood and her choice to choose what she wants to practice. This research paper will discuss the ambiguity surrounding the constitutional legitimacy of such provision using numerous case laws.
A legally binding contract between two consenting individuals, a husband, and wife, is known as a marriage. Indian law recognizes marriage as conjugal rights, consisting of marriage, divorce, and maintenance alimony during separation to a spouse. Under section 9 of the Hindu Marriage Act, 1955, restitution of conjugal rights “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.” The above section means that if a spouse has decided to walk away from the marriage on no reasonable grounds, the burden to find sufficient evidence of a valid excuse shall be on the spouse who chose to walk away in the first place. England was the first country to use this remedy that India followed in Moonshee Bazloor v. Shamsoonaissa Begum. Although England was the first country to establish this remedy, it also abolished the same in 1970, whereas India still follows the traditional laws of section 9 of the Hindu Marriage Act, 1955. Section 9 can not be deemed constitutionally valid as it violates the fundamental right to privacy, especially of a woman. It is one’s own wish to end a marriage; the court interfering and imposing restitution of conjugal rights is a form of violation of their personal liberty and freedom to life.
THE LACK OF LAWS AGAINST OFFENCES AGAINST MARRIED WOMEN
The restitution of conjugal rights is coercive as it forces a husband and wife to stay married even if they decide to end the marriage. Marriage is a sacred and holy institution, but any offense against a married woman in India is always justified. The Hindu Law was formed immediately after the independence; hence, it can be declared almost wholly unconstitutional. But the sexist society still allows India to be governed by such laws. In India, the wives are usually expected to meet their husbands’ sexual demands even without consent. This is proof that there is no accountability of men for marital rape. All these types of cases should be dealt with in criminal proceedings. Under section 375 of the Indian Penal Code, all the offenses of non-consensual sex with a woman are explained in detail. But as a part of exceptions, it clearly states that sexual intercourse between a husband and wife can not be considered rape if the wife is above the age of 18. ( according to a recent judgment in 2017 ) Section 9 of the Hindu Marriage Act, 1955, the court mandates the woman to stay in the marriage, despite the abuse she faces in the union. These respective laws demean women and violate their fundamental right to life with dignity. In the year 2021, August, the High Court of Chattisgarh stated that “Even if it was forced or without the agreement of a lawfully married woman, sexual intercourse or any sexual act by a husband with his spouse would not be considered rape.” To date, the courts fail to realize that a married woman is just as capable and can have her own life as an unmarried woman.
Along with India, there are 32 other countries where marital rape is not criminalized. However, according to World Health Organization, Sexual Violence can be defined as “any sexual act, attempted sexual act, sexually inappropriate comments or advances, or activities to traffic, or otherwise aimed, against a person’s sexuality using compulsion, by anybody, regardless of their connection to the victim, in any context, including but not limited to home and work.” In India, the maximum remedy a victim of marital rape will get is that she will be sent back to her native and will be forced to not talk about the incident. This is evident that the lack of law can be why there can be no criminal proceedings. The sexist mentality of men that they “own” the wife after marriage leads to more than 50% of sexual offenses against married women. A woman should not be forced to stay with an abusive husband, it should be her right to walk away from the marriage with dignity, and the accused should be punished for the offenses. The worst part about marital crimes is that victims’ families prefer them to keep shut and not go to court or voice their opinions, which gives them no hope but to keep enduring the pain and abuse from their husbands. This proves that the Indian Constitution can not preserve a married woman’s dignity and fundamental right.
THE RIGHTS OF A WOMAN IS MORE IMPORTANT THAN RESTITUTION OF CONJUGAL RIGHTS
Traditional beliefs on preserving the marital relationship through conjugal rights should be ignored, and it should be acknowledged that marriage entails something more than residing with each other. Women are susceptible to physically attractive guys and lose their ability to say no in a married context. The Hindu marriage vow means “union of thoughts” rather than “meeting of bodies,” as uttered throughout the ritual. The notion that marriage can only function if sexual relations are secure should be refuted. It should be recognized that a successful marriage requires more than just meeting the sexual interactions requirement. A few decades back, “Divorce” was considered a wrongful act, whereas a woman staying in an abusive marriage was considered the right thing to do. In this case, Shakila Banu v. Gulam Mustafa, the court held that “The notion dates back to when slavery or quasi-slavery was considered normal. This is especially true now that India’s constitution has come into effect, which protects men and women’s rights, equality of status and opportunity, and empowers the state to take special measures for their protection and security.” This highlights the importance of protection against women and how women can enjoy men’s rights. In this case, T. Sareetha v. Venkata Subbaiah, the Andra Pradesh High Court declared Section 9 of the Hindu Marriage Act, 1955 as unconstitutional as it violates Article 21’s right to liberty, which includes the right to the right to privacy, article 14, Right to equality of the Indian Constitution. However, the wife was defended by stating that it is her free will to decide whether she would use her body for procreation, and no one could coerce her into doing the same. This freedom of choice is a part of her right to privacy. By enforcing Section 9 of the Hindu marriage act, the court violates her fundamental right to privacy and her free will of choice.
The Delhi Court disregarded this view of the High Court of Andra Pradesh in Harvinder Kaur v. Harmander Singh. Justice Avadh Behari Rohatgi overlooked the decision of the AP High Court and stated that sexual relations are not the only relations between a husband and wife. The restitution focuses on cohabitation and consortium, which upholds the faith in marriage. In this case, the Justice proved the constitutional validity of section 9 of the Hindu marriage act. The Supreme Court upheld the decision of the Delhi High Court in Saroj Rani v. Sudarshan Kumar. The order was passed in favor of the wife to restate conjugal rights. The Supreme Court judge commented, “I cannot agree that Section 9 is unconstitutional howsoever the remedy may be old-fashioned or out of tune with the times. The restitution decree in the scheme of the Act is preparation for divorce if both the parties do not come together 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 strike it down on the ground that it is unconstitutional. In my opinion, Section 9 is perfectly valid.” The different courts provide various reasons of how courts intervention in a marriage is correct, but the courts fail to realize that their intervention is causing the most harm to women. The courts only focus on the restitution of the marriage, but they do not provide any judgment for the dignity of women. Once again, the restitution of conjugal rights is given more importance and value than a woman’s life.
SEXIST MYTHS AND BELIEFS OF SEXUAL VIOLENCE AGAINST MARRIED WOMEN
Marriage confers a privileged place on women in many traditional societies, such as India, and married women are socially accepted. Indian Traditional culture is distinguished by “arranged unions,” respected intermediaries such as family priests and relatives form marital ties between the two households. Although the new couple may be asked about the union, the parents have the last say in whether or not the marriage is approved. In most scenarios, the wedding couple may not have much time together before finalizing their choice. In most traditional Indian cultures, however, class, social standing, economic level, and religion all play essential roles in the preference for arranged marriages. Therefore, stressing the importance of marriage and family in India gives a comprehensive view of conventional gender roles and marriage relationships. Most individuals believe in sexist attitudes and may voice them towards women who have been sexually assaulted. Due to ancient cultural hurdles and rape myths, any woman who has been subjected to marital abuse by her husband may confront an ambiguity. In India, one of the most widespread preconceptions is that rape cannot occur well within the confines of a marriage. In addition to not recognizing they have already been raped or assaulted, society frequently trivializes the pain and repercussions that these women experience. Another belief followed by some parts of India is that rape by a stranger is more painful and traumatic than by the husband as there is chemistry and sexual intimacy. Culture and traditions, orthodox ideals, rape myths, toxic masculinity, and legal loopholes are all possible influences in India’s disregard for domestic abuse, especially against married women. However, there is little evidence that conjugal sexist attitudes are widespread in India. Outsiders must avoid interfering in family affairs since they are seen as private. This causes victims to remain silent about their complaints and the violence they have endured. There seems to be a “culture of silence” linked with sexual assault that happens within the family. As a result, victims are frequently met with an indifferent and callous response from the judicial system. Survivors’ experiences of exposure to traumatic events are enriched by socio-cultural practices and encounters with various agencies and organizations of society. Sociologists only studied spousal abuse in the last twenty years. The conventional hierarchical family’s function as a fundamental pattern of interpersonal support systems in India is threatened by investigations on marital abuse in India. Due to spousal abuse’s general delicate and private nature, it frequently elicits significant cultural and family opposition. The orthodox traditions of dowry practice in India play an important role in contextualizing the potential risks and social conventions that provoke spousal abuse against women and humiliation and embarrassment for the victims of marital abuse.
In this case, Huhhram v. Misri Bai, The wife left her marriage house, claiming that her husband and father-in-law mistreated her. On the other hand, the spouse sought a “restitution of conjugal rights” decision, and the judge mandated her to go back to her marriage house, just for her face mistreatments all over again. This shows that the court is least bothered about the dignity of women. As per Hindu tradition, “the success of a marriage is determined by righteousness, reproduction, and sexual satisfaction.” In this case, State of Bombay v. Narasu Appa Mali, “restitution of conjugal rights as a question of personal law infringes on India’s basic rights as outlined in Provisions Of the Indian constitution. The wife’s request for restitution of conjugal rights against the husband is uncommon. The man is more often than not judged if he is unkind or trying to evade paying alimony.” The Kerala High Court stated that marital rape constituted “a good reason” for divorce. On their 6 August judgment, Justices A Muhamed Mustaque and Kauser Edappagath said, “The husband’s licentious disposition neglecting the autonomy of the wife constitutes marital rape, while such behavior cannot be penalized, it comes within the frame of bodily and mental cruelty.” In this case, Swaraj Garg v. K.M. Garg, even though defenses article 19(1)(e) and (g) were not disputed, the court dismissed the injunction on social grounds. The husband filed a case on the restitution of conjugal rights when the wife refused to quit her job and travel with him. In this case, Shanti v. Ramesh, When his wife refused to resign her employment, the husband filed a lawsuit for “restitution of conjugal rights.” It was concluded that there was insufficient justification for denying the husband a declaration of “restitution of conjugal rights” since the wife’s refusal to join her husband in the marriage house owing to her employment was irrational and absurd. The court determined that the wife’s relocation for work was an unjustified justification for her abandoning the marriage home, infringing her fundamental right that guarantees freedom of choice and place of livelihood. As a result, women’s oppression and subordination under a sexist system and conservative relationship difficulties exacerbate marital violence in India.
CONCLUSION AND RECOMMENDATIONS
The clause of “restitution of conjugal rights” serves as a solution for any tension that arises within matters of marriage by forcing the spouse to maintain coexistence; a judgment for “restitution of conjugal rights” that is not obeyed for more than a year would serve as a basis for separation. Nonetheless, the court’s intervention in a marriage should not be glorified. It should be one’s personal choice to stay or walk out of a marriage. The restitution of conjugal rights leads to unhappy people at weddings as they are being forced against their will to reside together. The court has no right to violate the people’s fundamental rights and should refrain from indulging in their private matters. Sexual offenses against married women should not be glorified. The law should give the same importance and seriousness as any other sexual offense against women.
Contrary to society’s beliefs in India, Marital Rape is not a myth but a serious offense that should be criminalized. Any sexual move against women without consent is a sexual offense, even if it is against a wife and the husband is an accuser. Instead of restitution of conjugal rights, society should give importance to preserving the dignity of a woman. Women’s fundamental freedoms and rights should not be violated and should provide the same level of importance and status as men. The only case that favored the dignity and rights of women was T Sareetha v. T Venkatasubbaiah. In this case, the Andra Pradesh High Court declared Section 9 of the Hindu Marriage Act, 1955 as unconstitutional as it violates Article 21’s right to liberty, which includes the right to privacy, article 14, Right to equality of the Indian Constitution.
Nevertheless, the clause has withstood all challenges, with India’s fundamental values, with the High Courts and the Supreme Court confirming its legality. It is also worth mentioning that the English judicial framework, which kindly provided us with this remedy, does not respect its legitimacy and has subsequently knocked down this clause in the year 1970, thereby prompting one to wonder if the existing legal system’s conservative mindset will triumph overall. The majority of the Indian courts have passed judgments that degraded women and questioned their choice of livelihood. This research paper mentions many cases where the court ordered the woman to return to the marital home despite her hardships. No woman should face this type of discrimination. A woman’s dignity is imperative than her marriage. In case of any problems in the union, the couple can seek therapy and try to work on their issues. There are sensible options like couple’s therapy and other counseling sessions that help them work on their marriage. If none of the methods are proven valid, the couple can divorce. A divorce is much better than an unhappy marriage. The court should not meddle in this case. It should be recognized that “restitution of conjugal rights” is a solution for healing a broken union and promoting reunification in the simplest forms.
Nevertheless, no one should be compelled to do anything against their free will, and it should be up to the spouses to decide if they want to keep their marriage together or not. Most crucial, policymakers, advocates of women, public defender clinics, and feminist groups should keep working on expanding and broadening legal terms of marital rape, sexual pressure, and harassment by spouses. Furthermore, the judicial process must guarantee that health and safety laws for women and their children who have been victims of sexual abuse and laws criminalizing any domestic abuse in India are strictly enforced.
- Paras Diwan, The Hindu Marriage Act, 1955.
- D Gaur, Textbook on the Indian Penal Code.
- Geeta Pandey, BBC News, “In India, growing clamour to criminalize rape within marriage.”
- News18, “Marital Rape is Not a Crime in 32 Countries. One of Them is India.”
- Debasis Poddar, NLU Delhi Journal, “Restitution Of Conjugal Rights: A Quest For Jurisprudence Behind The Law.”
- Murali Krishnan, RFI International, “Marital rape is still not a crime in some parts of India.”
 Nancy Pearcey – We do not create marriage from scratch….. https://www.brainyquote.com/quotes/nancy_pearcey_530921
 Hindu Marriage Act, 1955, § 9, 1955 (India).
 Moonshee Bazloor v. Shamsoonaissa Begum, 1866-67 (11) MIA 551.
 MARITAL RAPE IS STILL NOT A CRIME IN SOME PARTS OF INDIA, https://www.rfi.fr/en/international/20210927-wk-marital-rape-is-still-not-a-crime-in-india (last visited Feb 18, 2022)
 MARITAL RAPE IS NOT A CRIME IN 32 COUNTRIES. ONE OF THEM IS INDIA, https://www.news18.com/news/india/marital-rape-is-not-a-crime-in-32-countries-one-of-them-is-india-4130363.html (last visited Feb 18, 2022)
 Debasis Poddar, Restitution Of Conjugal Rights: A Quest For Jurisprudence Behind The Law, Vol. 4, Journal National Law University Delhi, pp. 93-121 (2017). http://188.8.131.52:8080/jspui/bitstream/123456789/383/1/Journal%20National%20Law%20University%20Delhi%20Volume%204%202016-2017.pdf
 Shakila Banu V. Gulam Mustafa ILR 1971 Bom 714.
 T Sareetha v. T Venkatasubbaiah AIR 1983 AP 356.
 Harvinder Kaur v. Harmander Singh, AIR 1984 Del. 66.
 Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562.
 Huhhram v. Misri Bai, AIR 1979 MP 144.
 State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
 In India, growing clamour to criminalise rape within marriage, https://www.bbc.com/news/world-asia-india-58358795 (Last visited Feb 18, 2022).
 Swaraj Garg v. K M Garg AIR 1978 Delhi 296.
 Shanti v. Ramesh LJ 1961 All 67.
Written By Rangasree.