Institutional Privacy, Personal Autonomy, and the Conundrum of Restitution as a Remedy
** Alka Nanda Mahapatra and Harshita Gupta
The currently pending writ petition of Ojaswa Pathak v. Union of India provides us an opportunity to scrutinise matrimonial laws and remedies in India in a new light. Over the past few years, the horizons of personal autonomy and privacy have been clarified and crystallised by liberal and progressive judgements. Presently, we are seeing a gradual withdrawal of state interference from the private lives of people. However, there are still quite a few hurdles to be crossed, one of them being the matrimonial remedy of Restitution of Conjugal Rights [“RCR”]. As of now, the remedy is governed by an understanding derived from the judgement of the Supreme Court in Saroj Rani v Sudarshan Kumar (‘Saroj Rani’) which dates as far back as 1984 and the reasoning on which it stands might not pass the test of privacy and personal autonomy as we understand and hold sacrosanct today. Let us first understand what are the origins and meaning of RCR before diving into its constitutionality and a newer understanding of the institution of marriage.
What is RCR?
RCR is a matrimonial remedy governed by various personal laws in India. Section 9 of the Hindu Marriage Act, 1955 [“HMA”] (or other parallel provisions under Section 22 of the Special Marriage Act, 1954 [“SMA”] and Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908 [“CPC”]), allows a court to pass a decree directing an unwilling spouse to cohabit with the other and perform his/her marital obligations towards them, which may include sexual intercourse. This is because though the term “conjugal” has not been defined per se in any legislation in force in India, according to the Black’s Law Dictionary, it includes two aspects: first, the cohabitation of the two spouses, and second, consummation or marital intercourse. This interpretation has also been accepted in India through various judgments (see for e.g. Zavari v. Zavari; Shanti Devi v. Balbir Singh; etc.) and forms the practical reality of the impact of RCR despite claims made otherwise that sexual intercourse is only an incidental element of conjugality.
The concept of RCR was not originally a part of Indian personal laws. It originated in feudal England, when the wife was considered a chattel of the husband, and was then imported into the Indian legal system during the colonial period.
The policy objective that is often cited for RCR seeks to justify it as an effort to reconcile any problems in the marriage. This objective is also seen in Section 23 of the HMA, which explicitly mentions that it shall be the duty of the court to try and preserve this relationship before granting any decree.
Are the safeguards under Section 9 of the HMA enough?
When the law has empowered the judiciary with this level of intrusion into the private lives of individuals tied to each other in the bonds of matrimony, all in the name of preserving the sacredness of a marital relationship, several concerns arise regarding its misuse and abuse. However, it is often argued by proponents of the remedy of RCR that the safeguards present in Section 9 of the HMA are enough to prevent the same.
The first safeguard is the presence of a “reasonable excuse to withdraw from the society” for the withdrawing spouse, and the second is the absence of any legal ground to refuse the grant of the decree of restitution. The law, on the face of it, is intended to be used to induce “cohabitation” and not for forced sexual intercourse, although it may be a well-foreseen consequence. Section 9 is not a remedy that can be used to force the spouse to have sexual intercourse and its policy objective is to facilitate reconciliation, as argued by the supporters of this remedy.
However, there are several loopholes in this “safeguard.” First, the burden of establishing a reasonable excuse is on the spouse who has withdrawn from the society of the other. Second, certain acts, such as forced sexual intercourse and verbal and physical abuse, take place within the confines of the home and in secrecy; therefore, it is inherently difficult for the withdrawing party to prove such conduct.
Third, it is up to the judge hearing the matter to accept whether there exist legal grounds to refuse the grant of the RCR decree. This would mean that it ultimately depends on the subjective satisfaction of the judge whether there exists a reasonable ground for withdrawing from the society of the other spouse.
At this juncture, it should be kept in mind that such cases are first filed before the district courts or family courts, which have passed judgements espousing patriarchal and conservative perspectives in certain instances. Even the High Courts and the Supreme Court are not free from such biases. One needs to look no further than the judgement delivered in Harvinder Kaur v. Harminder Singh Choudhary, where the court completely disregarded the claims of sexual abuse and violence levelled by the wife against the husband and her mother-in-law and went on to dismiss her plea while enforcing its own notions of what constitutes cruel treatment. This case was later affirmed by the Supreme Court, stating that equating forced marital intercourse with rape is a “western construct” and ought not to be endorsed by a ruling of this court. We can, therefore, conclude that though the provision of RCR is couched in facially neutral terminology, it adversely and disproportionately affects the claims of aggrieved women. This is further aggravated by the fact that marital rape is not criminalised in India and, therefore, the courts are unlikely to grant any remedy in a case of forced sexual relation between spouses, since it is not a crime at all in the eyes of law as it stands today.
Procedural Aspects of Restitution of Conjugal Rights
As pointed out by Aarti Raghvan in a podcast for the Hindu, the petition filed for RCR is often resorted to as a “counterblast” measure against a petition for divorce or even a precursor to divorce since under Section 13(1A)(ii) of the HMA, wilful non-compliance of an RCR decree for a year or more matures into a ground for divorce. Though it is noteworthy that under the Civil Procedure Code, non-compliance with a decree of RCR might attract attachment of property of the spouse who is non-compliant with the order, though this measure is seldom resorted to.
In the opinion of the authors, the moot question here is whether and how the courts can enforce restitution when it involves both a mental and physical element. Even if a spouse resides with the other, can a court decree compel the spouse to be mentally involved in the society of the other? This thus renders the so-called reconciliation effort by the courts an exercise in futility. Marital relations flow out of an individual’s willingness, which simply cannot be generated by a court order.
The Case of Ojaswa Pathak and Constitutional Scrutiny of RCR
The pending writ petition of Ojaswa Pathak v. Union of India has challenged the constitutional validity of RCR in both secular and non-secular laws. The petition focuses on the vires of the provision through the lens of Articles 14, 15, and 21 of the Indian Constitution. This section delves deeper into the constitutional concerns surrounding RCR.
- Is marriage ever equal?
Article 14, read with Art. 15(1), bestows upon every citizen the right to equality and the prohibition of discrimination on grounds of sex, respectively. Any legislative measure treating the citizens of the country differently must therefore satisfy the dual test of: whether the measure differentiates on the basis of a reasonable classification; and whether there is a rational nexus of such classification with the objective that a legislative provision seeks to achieve.
RCR violates this right to equality under Art. 14 and 15(1) because this rational nexus is conspicuously absent, and moreover, the provision indirectly perpetuates discrimination against married women.
As we delve into the intricate fabric of marriage, we confront its deeply entrenched power dynamics, often hidden behind the veil of institutional privacy. Behind closed doors, the sanctity of marriage can unwittingly serve as a shield for perpetuating violence and abuse. Women, in particular, bear the brunt of this imbalance, with their contribution being relegated to unpaid care work and crippling them economically. As the state continues to advocate for reconciliation between spouses, we must ask who exactly are we protecting and at what cost.
The objective of Section 9 HMA may originally have been to preserve the institution of marriage, but the reality is that it is now being mostly misused. The practice of filing a suit for restitution of conjugal rights every time a wife files for maintenance or a complaint of cruelty, continues thereby defeating her claim. Further, restitution of conjugal rights is against the human rights of a person, as no one can or should be forced to live with any other person. The High-Level Committee on the Status of Women in India had also recommended in its 2015 report that the provision relating to RCR under various statutes be deleted. This report was endorsed and supported by the Law Commission of India’s 2018 Consultation Paper on Reform of Family Law.
In Navtej Singh Johar, the court has recognised the concept of indirect discrimination, noting that “facially neutral action by the State may have a disproportionate impact upon a particular class.” In T. Sareetha, the Andhra Pradesh High Court had very correctly observed that this matrimonial remedy is used almost exclusively by the husband and is rarely resorted to by the wife. This judgement was however overruled in Saroj Rani, where the court again relied on insufficient and archaic reasoning based on the privacy and sanctity of marriage. This again brings us back to the question of why exactly is it so important to protect the institution of marriage even at the cost of personal autonomy and sexual agency of people.
By enforcing a decree for restitution of conjugal rights, the life pattern of the wife is likely to be altered irretrievably, whereas the husband’s can remain almost as it was before. This is so because it is the wife who has to beget and bear a child that may be conceived out of a forced cohabitation. This issue further intertwines with reproductive autonomy because abortion without the consent of the husband has been held to be a ground for cruelty. Therefore, in essence, the wife is forced to carry the child and care for it on the basis of a Court decree granting restitution to the husband. This practical but inevitable consequence of the enforcement of the remedy adversely impacts the wife’s future and prevents her from using this self-destructive remedy.
- Is there space for personhood within the institution of marriage?
The right to privacy forms one of the most important cornerstones of our fundamental rights. However, this right has been contextualised to fit within the four walls of the marital abode. As evidenced in Joseph Shine v. Union of India, the stance of the judiciary is that while consensual adult relationships are rightly shielded from state interference, certain aspects of private relationships, such as age of marriage, RCR, judicial separation, divorce, and custody, are deemed to fall within the ambit of legitimate state interest. This acceptance is again rooted in the belief that preserving marriage is essential for the public interest, thus justifiably forming an exception to individual privacy.
The authors argue that such subordination of individual privacy to preserve the institution of marriage in the name of public interest is a death knell for individual rights, decisional privacy, autonomy, and especially, sexual agency.
In the case of T. Sareetha v. T. Venkatasubbiah, the Andhra High Court struck down Section 9 of the HMA as unconstitutional on the ground that it constitutes the grossest form of violation of an individual’s right to privacy guaranteed under Article 21 of the Constitution. Privacy includes, at its core, the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation. It also safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life, including intimacy in privacy, which is a matter of each person’s choice.
This fundamental right depends on the exercise of autonomy and agency by individuals. As has been most succinctly put in Joseph Shine, “[f]amilial structures cannot be regarded as private spaces where constitutional rights are violated.”
In a constitutional democracy, no one can own the personhood and sexual autonomy of another, regardless of what socio-legal relations tie them together. The husband neither owns the wife nor can he control her sexual agency. The Puttaswamy judgement (Right to Privacy, 2018) sheds much-needed light on the concept of sexual autonomy, holding that familial ties cannot override the sexual autonomy of individuals. Seen in this light, RCR not only undermines the decisional privacy and autonomy of the person but also does greater injustice by placing this power in the hands of the State, or rather, the judiciary.
Hence, RCR is not merely a tool to facilitate reconciliation. It is also used as a counterblast to divorce proceedings, a sword against maintenance claims, and much more. By perpetuating norms that prioritise the sanctity of marriage over individual dignity and autonomy, the law risks marginalising those most vulnerable within marital relationships. Thus, while the state’s interest in preserving marriage may be acknowledged, it must not come at the expense of fundamental rights, including the right to privacy and bodily integrity.
End in England but Reality in India: Is There a Point?
Proposal for the Abolition of the Matrimonial Remedy of RCR was forwarded in the United Kingdom as early as 1969. The following arguments were made for this motion before the Parliament and accepted as valid grounds for abolishing this remedy:
First, a spouse’s endeavour to save the marriage by showing his or her willingness to resume married life together can be equally demonstrated by other “more appropriate” approaches. If these approaches fail to achieve reconciliation, it is unlikely that legal proceedings will have a better effect.
Second, if RCR proceedings are brought with an aim to establish desertion, this can also be equally effective by obtaining an order on the ground of desertion in the magistrate’s court.
Third, if the purpose of RCR proceedings is to obtain financial support, then the proper remedy is S. 22 of the Matrimonial Causes Act, 1965, which enables a wife whose husband wilfully neglects to maintain her or the children to obtain proper financial provision without resorting to the proceedings for RCR.
Fourth, a court directing adults to live together is “hardly an appropriate” means to effect reconciliation.
Fifth, the “order” for RCR has in fact “no teeth” and only brings the law into disrepute since few, if any, decrees are obeyed.
The above arguments can easily be adopted into the Indian context as well. We have legal provisions for desertion (Section 13 HMA, Section 27 SMA, etc.), maintenance (Section 125 CrPC), privacy (Article 21 Constitution of India read with Puttaswamy), and even more elaborate provisions to achieve all the purported aims that RCR rarely seems to satisfy.
Redefining Marriage: Towards Equality, Autonomy, and Partnership
The current legal perspective regarding marriage is centred around the notion of procreation, viewing it as the primary and social purpose and therefore a public good. This traditional understanding of marriage prioritises the role of couples in bearing children and perpetuating familial lineage. However, this perspective overlooks the diverse reasons individuals enter into a marriage and disregards the complexities of human relationships in today’s time.
The authors thus propose a paradigm shift in understanding marriage as a “consortium,” emphasising the partnership and mutual support between spouses beyond procreation. This broader conception acknowledges that marriage encompasses various facets, including emotional companionship, shared responsibilities, and mutual respect. However, this represents a shift in the social mindset of the public at large, which will take time to cultivate and observe in practice. To support this transition, we propose the following legislative measures and amendments.
First, we advocate for the reconsideration of certain legal provisions, such as a “refusal to consummate” being considered as constituting cruelty in matrimonial disputes. By deeming the refusal to engage in sexual relations as a form of cruelty, the law not only disregards individual autonomy but also perpetuates harmful notions of entitlement within marital relationships. Such provisions fail to account for instances of coercion, lack of consent, or underlying issues within the relationship that may contribute to the refusal.
Second, we also advocate for the inclusion of “irretrievable breakdown of marriage” as a ground for divorce under Section 13 of the HMA, to effectively address the argument that RCR is necessary as a precursor to divorce. The perpetuation of patriarchy and the violation of bodily autonomy and sexual agency inherent in this remedy far outweigh any justification for its role as a precursor or countermeasure in divorce proceedings. Thus, introducing this ground for divorce would be a far more favourable alternative, ensuring that no individual is compelled to cohabit with their spouse simply because the state deems the preservation of their marriage a “public good.”
Third, in evaluating the constitutionality of these provisions, we must prioritize the protection of individual rights and dignity within the framework of marriage. While recognising the state’s interest in preserving marital stability, this must be balanced with the fundamental principles of equality, autonomy, and bodily integrity.
Hence, even if these provisions are not declared unconstitutional, we propose a re-evaluation and reworking of existing laws to align with contemporary understanding of marriage and individual rights. This would involve amending laws to remove discriminatory or outdated provisions, criminalising marital rape, incorporating safeguards to protect against coercion or abuse of both the spouses, and promoting alternative dispute resolution mechanisms that prioritise mediation and reconciliation.
Ultimately, our aim is to foster a legal framework that upholds the principles of justice, equality, and respect within marital relationships, while also acknowledging the diverse needs and experiences of individuals. This approach ensures that our legal system remains relevant and responsive to the evolving dynamics of modern marriage, while also promoting a more inclusive and equitable society.
** Alka Nanda Mahapatra is an Honours student at the National Law University Jodhpur, with a strong academic focus on constitutional law, human rights, and their intersection with public international law. She is an active member of the Centre for Gender Studies, where she contributes to promoting gender equality and inclusivity. In her leisure time, she enjoys reading fiction and spending time with her pets.
Harshita Gupta is reading law at National Law University Jodhpur. She has a keen interest in Data Privacy, Constitutional Law and its intersection with human rights. She is an active member of the Legal Aid and Awareness Committee, and works towards making legal aid accessible. In her free time she can be found doing fabric painting and cooking.
Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.
