Restitution of Conjugal Rights

The Supreme Court today in a plea filed by challenging the Court’s power under the Hindu Marriage Act ("HMA") and Special Marriage Act ("SMA") to direct “restitution of conjugal rights” of an estranged couple.

Bench of Justice RF Nariman, Justice KM Joseph and Justice BR Gavai

Bench of former Chief Justice Ranjan Gogoi, Justice Deepak Gupta and Justice Sanjiv Khanna on March 15, 2019 issued notice in the plea.

Ojaswa Pathak and Mayank Gupta had challenged Section 9 of the Hindu Marriage Act and Section 22 of the Special Marriage Act which empower courts to direct the spouse who has withdrawn from the society of the other without any reasonable excuse to resume conjugal relations. The plea said that these laws treated women as “chattel” and were violative of fundamental rights including the right to privacy.

“The provisions for restitution of conjugal rights are facially neutral as they allow both the husband and the wife to move court. However, in effect, they are deeply discriminatory against women. The inevitable effect of the provision has to be seen in light of the deeply unequal familial power structures that prevail within Indian society,” said the petition.

The petitioners, while asserting that the right to cohabit was an intimate personal choice, further contended that the two provisions under HMA and SMA requiring a person to cohabit with another against his/her freedom were against an individual’s right to privacy.

The petitioners thereafter requested the top court to reconsider its 1984 verdict in which it reversed an Andhra Pradesh High Court judgment quashing Section 9 of HMA. The top court had said such a right was inherent in the institution of marriage.

Case Title: Ojaswa Pathak and Anr v Union of India| WP(C) 250-2019