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When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court.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.
