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‘Saves institution of marriage’: Centre backs law empowering courts to make spouses live together

Arguing that remedy of conjugal rights is 'gender-neutral', Centre submitted that calling right to cohabitation a coercive measure on intimate personal choice is 'utopian'.

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New Delhi: Endorsing provisions of the law that grant a court the power to direct a man or woman to live with his/her spouse, the central government told the Supreme Court in a submission Monday that provisions for restitution of conjugal rights are aimed at protecting the institution of marriage and family.

Estranged couples use this remedy to find solutions to matrimonial problems which may not be so grave, and to “iron out normal wear and tear of matrimonial life”, the Centre said, adding that if differences cannot be reconciled, the couple can choose to get a divorce.

Conjugal rights are rights created by marriage and entitle one to, among other things, live with his/her spouse. Right to property and succession under civil law and maintenance and alimony under criminal law also fall under the ambit of conjugal rights.

The Centre’s submission Monday was in response to petitions challenging the Constitutional validity of provisions that permit restitution of conjugal rights. Provisions under challenge, which are part of the Hindu Marriage Act, the Special Marriage Act and the Code of Civil Procedure, allow a spouse to move court to compel the other spouse to live with them. 

These provisions essentially recognize one such conjugal right — the right to live together (cohabitation) and companionship (consortium). Disobeying a direction in this regard from a court of law can attract coercive measures like attachment of property.

Opposing the petition challenging these provisions, the central government in its submission called marriage an “institution of reciprocal obligations”, and asserted that the “intention of restitution of conjugal rights is to preserve the institution of marriage”. 

The remedy for restitution protects the institution of marriage and family, which is the “bounden Constitutional duty” of the legislature, the Centre argued. 

“A remedy for restitution of conjugal rights is aimed at cohabitation between estranged parties and it serves a social purpose as an aid to the prevention of break-up of marriage. Further the remedy for restitution serves the aim of preventing a marriage from leading to an irretrievable breakdown,” it said.

The Centre also told the apex court that “the remedy of restitution of conjugal rights, is a positive, useful and practical matrimonial remedy, available to both spouses in equal measure and vigour”. 

The petition in this case was filed in February 2019 by students of the Gujarat National Law University (GNLU), challenging the constitutional validity of legal provisions allowing restitution of conjugal rights. 

Petitioners had questioned the validity of Section 9 of the Hindu Marriage Act, Section 22 of the Special Marriage Act, and Order 21, Rules 32 and 33 of the Code of Civil Procedure — all of these provisions enable a court to pass an order of restitution of conjugal rights on a petition filed by either of the two spouses, and execute such an order.


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‘Gender-neutral’

Section 9 of the Hindu Marriage Act allows a court to pass an order directing restitution of conjugal rights if a spouse “has, without reasonable cause, withdrawn from the society of the other”. 

The Centre has emphasised on this part of the provision to submit that it is for the courts to decide what constitutes “reasonable cause”, while ensuring “fairness and reasonability”. It has also relied on a 1984 Supreme Court judgement which had upheld this provision.

Petitioners in this case have further alleged that this provision is “deeply discriminatory towards women”, and that the “direct and inevitable effect of the provision has to be seen in light of the deeply unequal familial power structures that prevail within Indian society”.

Disputing these arguments, the Centre has submitted that the remedy of conjugal rights is “gender-neutral” and is used by husbands as well as wives.

Petitioners, while challenging the validity of the provisions, also submitted that directing a person to live with another person against their will amounts to a violation of right to privacy. The “right to cohabit or take part in sexual intercourse with another is an ‘intimate personal choice’,” the petition argues.

However, the Centre in its submission said calling the right to cohabitation a coercive measure on intimate personal choice is “wholly, misconceived, fallacious and utopian”, adding that the provisions in question constitute a “positive, practical and innocuous matrimonial remedy”.

The “continuation of the institution of marriage or at least making an honest attempt at it, is legitimate state interest”, the submission said. 

It also pointed out that similar provisions allowing restitution of conjugal rights are part of other religion-specific laws like the Parsi Marriage and Divorce Act 1936, and the Divorce Act 1869 that applies to Christians.

The Centre, therefore, asserted that the “remedy of conjugal rights is in sync with the ecosystem of marriage laws and has enough checks and balances to ensure that the same is just, fair and reasonable in order to not fall foul of Article 21” of the Constitution.

(Edited by Amrtansh Arora)


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