Conjugal Rights: A Breach of the Constitutional Promise?

 

In his last official address to the Constituent Assembly, Dr B.R Ambedkar had emphasized prioritising the need for the establishment of a social democracy to go in hand with political democracy, without which democracy in India would not succeed. The exigency of instituting a ‘social democracy’ was rooted in the inherent inequalities that had plagued Indian society for centuries and to eradicate it Dr Ambedkar envisaged the triad of ‘Equality, Liberty and Fraternity’. Enshrined in the Preamble, the principlesof equality, liberty, and fraternity assume paramount significance, forming the ground for thoughtful governance. These principles work as a premise of Part III of the Constitution as Fundamental Rights and are especially reflected under Articles 14 and 21. The Right to Equality under law and the Right to Liberty were incorporated by Dr Ambedkar through the introduction of the Hindu Code Bill. The codification aimed to serve the dual purpose of elevating the status of women while also addressing the disparities of caste.

And yet, despite the egalitarian ideals that guided the codification of personal laws, multiple legal provisions continue to uphold gender disparities. One such legal provision is Section 9 of the Hindu Marriage Act, i.e Restitution of Conjugal Rights (RCR), a matrimonial relief provided to a distressed spouse in a legally instituted marriage. The RCR provision was introduced out of concerns for marriage preservation, despite many legislators’ objections that it may be used only for the detriment of women. It is reiterated in Section 22 of the Special Marriage Act. Rule 32, Order XXI of the Code of Civil Procedure, gives the enforcement mechanism for an RCR decree and under Section 13, non-compliance with such decree provides a legal ground for divorce.

A writ petition currently lies before the Supreme Court, challenging the constitutionality of the ‘facially neutral’ provision of RCR. Urging that the viability of a legislative provision has to be tested according to the contemporary times, the petitioners sought to accentuate the inefficacy of the RCR provision in the post Puttuswamy judgement era. The PIL is premised on the constitutional guarantee to every individual of the right to be left alone - even within the framework of a family. Describing the court-mandated restitution of conjugal rights as a “coercive act” on the part of the State, the petitioners submitted that “Any provision which forces an individual to have sexual relations or even cohabit a home without her will is violative of the right to privacy, individual autonomy and dignity that are guaranteed by Article 21 of the Constitution"

Procedural Aberrations: Contemplating Individual vs. State’s Interests

Rooted in British ecclesiastical law, the concept of RCR was brought to India during the colonial period. Judicial understanding of conjugal rights between spouses was based on the idea of equity, which played a central role in English jurisprudence. It was the idea that equity could compel specific relief for a wrong that underwrote the courts’ interpretation of the RCR remedy. Marriage was construed as a property deal between a man and a woman. Husband’s rights of access to his wife formed the core of this ‘deal’, which if violated, could be remedied by compelling her to live with him or punishing her if she does not submit. The Scarman Commission Report recognized the privacy breach underlying the RCR remedy and highlighted the futility of such a provision. Consequently, the United Kingdom and other common law countries abolished it. However, it continues as a relic in Indian statutes, despite being challenged multiple times.

Justice Pinhey was one of the early dissenters in Dadaji Bhikajiv. Rukhmabai, where he described the remedy as ‘barbarous, cruel and revolting’ and declined to grant RCR decree for a wife to be compelled into residing with her husband.

Years later, in T. Sareetha v. T. Venkata Subbiah, the Andhra Pradesh High Court recognized the fundamental issue of privacy breach underlying an RCR decree and observed that such a decree would not just be limited to the enjoyment of spousal company but would also translate into a court-mandated relief of conjugal intercourse. Adopting a liberal definition of the Right to Privacy, Justice Choudhary observed that such a right is ‘not lost by marital association’. Thus, holding that an RCRdecree is an offence on the inviolability of the body and mind and an invasion into marital privacy and domestic intimacies, the Court struck down Section 9of the Hindu Marriage Act as unconstitutional.

However, in the subsequent matter ofHarvinder Kaur v. Harmander Singh Choudhry, the Delhi High Court took an alternate stand. The single judge bench of the Delhi High Court was of the view that the judgement on the constitutionality of the RCR remedyrendered by the Andhra Pradesh High Court focused solely on the aspect of conjugal intercourse, while sex, in the opinion of the learned judge, only comprised of a single fragment of conjugal cohabitation and was not the summum bonum. Negating the issue of breach of privacy, thus, theRCR remedy was held not to be violative of Articles 14 and 21.

When the question came up for adjudication before the Supreme Court in the matter ofSaroj Rani v. Sudarshan Kumar Chadha, the Apex court reverted back to a narrower definition of privacy and affirmed the view of the Delhi High Court, upholding the constitutional validity of Section 9.The Court relied on the earlier conception of privacy, as established by Gobind v State of MP and construed RCR as serving a social purpose for amicably resolving marital disputes.

Legal Contours of Autonomy and Privacy

Recent judicial developments have rendered drastic changes to the interpretation of individuality coupled with the embracing of privacy as an indispensableelement of citizenship. The Supreme Court, in K. S. Puttuswamy v Union of India, has recognised the Right to Privacy as an integral part of human dignity which grants an individual complete autonomy over their body. One of the primary objectives of the Apex Court underlying this judgement was to equip the citizens with a constitutional safeguard against unnecessary and unreasonable intrusions by the State in the domain of individuality.

The paramountcy and overriding facet of privacy was once again reiterated by the Supreme Court in the landmark judgement of Navtej Singh Johar v. Union of India, where the five-judge bench observed that societal morality could not trump constitutional morality and that ‘bodily autonomy was individualistic, a part of dignity and a matter of choice’.

In this regard, supremely significant are the observations made by the Supreme Court in Joseph Shine vs. Union of India, where it was held that the curtailment of sexual autonomy or the presumption of lack of consent upon entering marriage are issues which are ‘antithetical to constitutional values.’

Justice Chandrachudelucidated that there is an explicit recognition that marriage is a constitutional regime founded on the equality of and between spouses and that ‘each of them is entitled to the same liberty which Part III guarantees.’ By virtue of this judgement, the Court has made a conscientious attempt to incorporate the institution of marriage within the realm of application of constitutional dignity and individuality of each citizen.

Conclusion

As in the words of Hon’ble Justice D.Y Chandrachud:

“The Constitution has within it the ability to produce social catharsis..”

The underlying thrust of each of these judgements was that morality, as envisaged by the Constitution, leads the judiciary to abolish laws that may be rationalised in the name of societal convention, but social morality must bow down to theoverriding constitutional principles of individual liberty, equality and dignity. Upon assessment of the recent rulings by the Supreme Court, it becomes apparent that the Court has strongly placed the individual at the centre of the constitutional firmament and set a course for progressive social reform. Indian society is morphing into one where bodily autonomy, dignity and choice are put before societal concerns and thus, it is time obsolescentprovisions like RCR, which entrench gender inequalities, are eradicated. The writ petition serves as a ripe opportunity for the Supreme Court to construe the remedy in the modern context and set forth the departure of the RCR provision from Indian statutes.

                   (Jayati Sinha is a 2nd year law student of Faculty of Law, University of Delhi.)