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Conjugal rights before Supreme Court

  • IASbaba
  • July 20, 2021
  • 0
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Conjugal rights before Supreme Court

Part of: GS Prelims and GS-II – Judiciary

In news The Supreme Court is expected to begin hearing a fresh challenge to the provision allowing restitution of conjugal rights under Hindu personal laws. 

What are conjugal rights? 

  • Section 9 of the Hindu Marriage Act, 1955 deals with restitution of conjugal rights. 
  • It recognises one aspect of conjugal rights — the right to consortium and protects it by allowing a spouse to move court to enforce the right. 
  • Conjugal rights are rights created by marriage, i.e. right of the husband or the wife to the society of the other spouse. 
  • The law recognises these rights— both in personal laws dealing with marriage, divorce etc, and in criminal law requiring payment of maintenance and alimony to a spouse.  

How can these rights be enforced? 

  • When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court. 
  • And the court, on being satisfied of the truth of the statements made in such a petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. 
  • Also, if a spouse refuses cohabitation, the other spouse can move the family court seeking a decree for cohabitation. If the order of the court is not complied with, the court can attach property. However, the decision can be appealed before a High Court and the Supreme Court.

Why has the law been challenged? 

  • Main ground is that it is violative of the fundamental right to privacy. 
  • It amounted to a “coercive act” on the part of the state, which violates one’s sexual and decisional autonomy, and right to privacy and dignity. 
  • The provision disproportionately affects women. Women are often called back to marital homes under the provision, and given that marital rape is not a crime, leaves them susceptible to such coerced cohabitation. 
  • Also in question is whether the state can have such a compelling interest in protecting the institution of marriage that it allows a legislation to enforce cohabitation of spouses. 

News Source: IE

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