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ARE COURTS LEGALISING MARITAL RAPE THROUGH RESTITUTION OF CONJUGAL RIGHTS?

By Akshita Grover

The provisions of the Restitution of Conjugal Rights are present in Hindu, Christian, Parsi and Muslim personal laws. 

A decree of RCR orders the guilty party to cohabit with the aggrieved party. Although the provision of restitution of conjugal rights has been upheld by the Supreme Court earlier, it has been challenged again. The object to enforce this right was set in a socio-cultural context of keeping the ties of a marriage strong and not easy enough to break off from. 

This provision has done more harm than good, and the following piece aims at exploring how so by revolving around its archaic origin and its disproportionate effects on women. This piece also covers how RCR is violative of the Right to Equality, Right to Freedom, Right to Privacy, and Right to life and liberty. 

INTRODUCTION:

A marriage creates conjugal rights and obligations, i.e., the right of the spouse to the society of the other spouse. These rights are recognized by the law both in personal laws (dealing with marriage & divorce) and criminal law (requiring payment of maintenance & alimony). 

Section 9 of the Hindu Marriage Act (which applies to Sikhs, Buddhists, Jains and Hindus) recognizes one such conjugal right, referred to as: Restitution of Conjugal Rights (hereafter referred to as RCR). There are similar statutory provisions in Christian, Parsi and Muslim personal laws. 

Although the provision of restitution of conjugal rights has been upheld by the Supreme Court earlier, it has been challenged again. The object to enforce this right was set in a socio-cultural context of keeping the ties of a marriage strong and not easy enough to break off from. This provision has done more harm than good, and the following piece aims at exploring how so.  

ARCHAIC ORIGIN & MECHANISM FOR LEGALISED RAPE

This provision originates from Jewish Law and reached India through British Rule in the late 19th Century. It is premised on the discriminatory and archaic notion that women are the chattels of their husbands. 

It quickly gained popularity and was brought about by abandoned wives to either regain access to marital homes or compel their husbands to provide maintenance and by husbands to bring their wives back home. 

This was a time when both Hindu and Muslim personal laws allowed polygamy and “divorce laws” were absent. This setup led to legally sanctioning inequalities between men and women. Further on, this obstructed women’s empowerment. 

There was a discernible shift in the suits filed for RCR as men started dragging their wives to court more than women did. The subject matter of these cases was ‘weekend marriages’ where the couple lived apart owing to their job constraints. 

It attacked middle-class independent women who often had careers before marriage. In Tirath Kaur v. Kirpal Singh (1964) both the lower court and the Punjab High Court held that “a wife’s first duty to her husband is to submit herself obediently to his authority, and to remain under his roof and protection” and thus the husband is justified in asking the wife to give up her job for the sake of living with him. 

The judgement of Kailash Wati v. Ayodhia Parkash (1977) further enforced this, by holding that “The true position in law appears to be that any working woman entering into matrimony by necessary implication consents to the obvious and known marital duty of living with a husband as a necessary incident of marriage.” 

In India, RCR became a mechanism for husbands to coerce their wives through formal proceedings of the justice system. The country that introduced it to us, abolished it through the Matrimonial Proceedings and Property Act 1970 of England and in fact, every other common law country has abolished this remedy from their legal system. 

Post-Independence, during the formulation of the Hindu Marriage Act, various lawmakers pointed out RCR to be a mechanism for “legalized rape”. This provision was simply copy-pasted from the English statute books and did not go through intelligent and unbiased scrutiny

It is yet another colonial legacy surviving due to legislative laxity as it is not rooted in the Indian socio-cultural society.

DISPROPORTIONATE AFFECTS WOMEN

The provision allows both husband and wife to seek RCR and is thus gender-neutral. 

Despite that, the provision disproportionately affects women and is almost always used by husbands (in fact a suit for RCR by the wife is rare).  In almost all cases it was proved that either he was guilty of cruelty or brought the petition only to escape the liability to pay maintenance. 

This provision is misused to retaliate against a divorce petition filed by the aggrieved wife or to shield against alimony or maintenance payments. The facts and trends of the RCR petitions show that the petitioners invariably neither desire nor expect a reconciliation from the respondent

The Report of the High-Level Committee on the Status of Women, Ministry of Women and Child Development in 2015, highlighted the fact that this provision was only being used to defeat maintenance claims filed by wives and served little purpose otherwise. 

​The report further recommended that restitution of conjugal rights had no relevance in independent India and the existing matrimonial laws already protect conjugal relations, as the denial of consummation is recognised as a ground for divorce. 

The report suggested the deletion of Section 9 of the Act, 1955, Section 22 of the Special Marriage Act, 1954, and Section 32 of the Indian Divorce Act, 1869 (RCR provisions in the Indian scenario).

In India, which is in innumerable ways governed on patriarchal lines, it is undeniable that both the spouses are not on an equal footing. Women are at times even abandoned by their own families after marriage, and their only recourse to domestic violence and abuse is separation because divorce leads to social stigmatisation. 

The wife is socially and economically dependent on the husband and with an RCR as a mechanism, husbands use it to strong-arm their wives into submitting themselves to their company. This violates the wife’s basic essence, their very being, by coercing and dictating a decision of who to reside with. 

VIOLATIVE OF RIGHT TO LIFE & LIBERTY AND RIGHT TO EQUALITY 

The provision’s effectiveness to call back the wife to her marital home clubbed with the fact that marital rape is not a crime leaves the wife susceptible to coerced cohabitation

In the judgement of​ T . Sareetha v. T. Venkata Subbaiah (1983), ​Section 9 of the Hindu Marriage Act was declared unconstitutional. The Andhra Pradesh High Court had held that a degree of RCR not only extended to the mere company of the spouse with the decree-holder but in effect, embraced the right to have marital intercourse. This choice to have or not have sexual intercourse transfers to the state instead of the individual. 

The court further held that “A decree enforcing restitution of conjugal right constitutes the starkest form of Government invasion of personal identity and individual’s zone of intimate decisions. There can, therefore, be little doubt that such a law violates the right to privacy and human dignity guaranteed by and contained in Article 21 of our Constitution.” 

The Court also stated that in the enforcement of RCR, the life pattern of the wife gets altered irretrievably as compared to the husband’s as the wife has to beget and bear a child. This practical and inevitable consequence of the enforcement of RCR hinders the wife’s plans, thus making this provision partial and one-sided. 

This is problematic as it infringes the Right to Equality under Article 14 of the Constitution. A similar question was raised in the Delhi High Court in Harvinder Kaur v. Harmander Singh (1984), which opined contradictory to what the Andhra Pradesh HC had held. The Delhi HC’s decision was sustained by the Supreme Court. 

The Supreme Court upheld the constitutionality of RCR in Saroj Rani v. Sudarshan Kumar Chadha (1984) stating that the objective of the decree is only an inducement for the spouses to live together and that it did not force an unwilling wife to engage in sexual relations with the husband. 

The aim is to bring “cohabitation” between spouses and is only focused on “consortium”. The Hon’ble Court failed to acknowledge the practicality of the provision. In very technical terms, marital rape is not “illegal” per se and with this premise, the husband can very well force the wife to engage in sexual intercourse with him, without any consequences. 

The wife will be cornered with two options of either a long-drawn divorce petition based on cruelty or a domestic violence petition based on sexual violence, neither of which doesn’t involve any criminal impunity

Hence, by legally enforcing “cohabitation” in the name of saving the marriage, the court is risking the wife to forceful sexual intercourse with her husband. This goes in clear violation of her bodily autonomy, right to privacy, right to dignity and her fundamental liberty in the marital relation

The burden of proof in RCR is on the party who has withdrawn from another’s society, hence it is mostly on the wife to justify her unwillingness to cohabit.

Further on, the consequence of disobeying the decree results in the ground for a decree of divorce under Section 13(1A) of the Hindu Marriage Act,1955 and in civil contempt under the Contempt of Courts Act,1971. 

Thus, the person might even get exposed to penal liability and court litigations. 

VIOLATIVE OF RIGHT TO FREEDOM & RIGHT TO PRIVACY

The decree of restitution of conjugal rights further violates the Right to Freedom of association [Article 19(1)(c)], Freedom to reside or settle in any part of India [(19)(1)(e)] and Freedom to practice any profession [19(1)(g)]. 

The will and consent of the spouse are not considered while granting a decree of RCR unless the spouse can prove “reasonableness” of his withdrawal from society. This compels the spouse to cohabit with their spouse against their wishes, making it coercive and also violative of freedom of association guaranteed under Article 19 of the Constitution of India. 

In the case of Sukram v. Misri Bai (1978), the wife left her husband because her husband and father-in-law mistreated her. Despite that, the Madhya Pradesh High Court granted a decree of RCR to the husband. Due to this, she was subjected to the risk of her being molested by her father-in-law owing to her association with her husband all because of an RCR decree. 

Further, in the case of Atma Ram v. Narbada Devi (1979), the husband did not want to live with his wife, and against his wishes, the Rajasthan High Court granted a decree of restitution in favour of the wife thereby violating the freedom of association of the husband. 

The decree of RCR violates the freedom to reside in any part of India because a spouse is forced to come and live with another spouse in their matrimonial home and in this process, has to give up their career/job which also violates the freedom of practising any profession in many cases.

In the landmark case of Bhikaji v. Rukhmabai (1885), Justice Choudary held that when a wife is forced to live with her husband, she may have to endure ‘humiliating sexual molestation’ and might be forced to have children. 

The court also found that to treat a man and a woman who are inherently unequal in Indian society as equal in front of the law was a violation of Article 14. This provision also violates the fundamental right to privacy. In 2019, a nine-judge Bench of the Supreme Court recognized the right to privacy as a fundamental right. 

A court-mandated RCR decree amounts to state coercing the individual, which violates one’s sexual and decisional autonomy, and right to privacy and dignity. In the recent case of Joseph Shine v. Union of India (2019), the SC highlighted the right to privacy and bodily autonomy of married women by stating that marriage does neither take away their sexual freedom nor their choice. 

RCR is in a direct contradiction of this precedence as to how a court mandating two adults to cohabit against the wishes of one of them. 

CONCLUSION : 

In times of women empowerment, feminism, gender-neutral and progressive mindsets, an archaic and biased law is not only surviving but also being enforced one-sidedly. 

Dowry deaths, marital rape, cruelty and domestic violence are undoubtedly a plague on society. When these tired and broken wives, take the brave step of leaving their marital home, a decree of RCR is a noose around their necks. 

RCR subjects the wife to the risk of domestic and sexual abuse. This violates the Right to Freedom, Right to Equality, Right to Privacy and also Liberty under Article14, 19 and 21 respectively. 

Restitution of Conjugal Rights is against the ideas of human dignity and individual & decisional autonomy. The state has no legitimate or compelling interest in enforcing companionship and cohabitation in the name of saving the marriage. 

Thus, it is imperative to rethink the Restitution of Conjugal Rights. 

Akshita Grover is 2nd-year law student, pursuing BBA LLB at Jindal Global Law School

akshitagrover@gmail.com

Image credits – https://www.powerofpositivity.com/relationship-is-being-forced-to-last-signs/

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