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Supreme Court bench led by Justice RF Nariman will hear a PIL challenging restitution of conjugal rights provisions

Team SoOLEGAL 8 Jul 2021 2:33pm

Supreme Court bench led by Justice RF Nariman will hear a PIL challenging restitution of conjugal rights provisions

Public Interest Litigation has been filed in the Supreme Court challenging Section 9 of the Hindu Marriage Act and Section 22 of the Special Marriage act, as well as Rules 32 and 33 of Order XXI of the Code of Civil Procedure. The petitioner claims that the state's court-mandated restitution of conjugal rights is a "coercive act" that infringes one's sexual and decisional autonomy, right to privacy, and dignity, all of which are protected by Article 21 of Indian constitution.

Section 9 of the Hindu Marriage act states that when either the husband or the wife has withdrawn from the society of the other without reasonable excuse, the aggrieved party may apply to the district court for restitution of conjugal rights, and the court, after being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted. A similar clause has been included in the Special Marriage Act, and Rule 32 and 33 of Order XXI of the Civil Procedure Code deals with the execution of the decree for restitution of conjugal rights.

“Many of the India's personal law don’t accept the remedy of restitution of conjugal rights. The same can be traced back to feudal English law, which viewed a woman to be the husband's chattel at the time. In 1970, the United Kingdom eliminated the remedy of restitution of marital rights”, according to the plea. The petitioner also sited the case Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562, in which SC overruled the order of the Andhra Pradesh High Court to strike down section 9 of the Hindu Marriage Act. In the judgment, the court had made the following observations: -

1.     In India, conjugal rights, or the right of a husband or wife to the society of the other spouse, are not just merely creature of statute. The right to divorce is enshrined in the institution of marriage itself. Section 9 of the Hindu Marriage Act contains adequate protections to prevent it from becoming a dictatorship.

2.     Section 9 of the Hindu Marriage Act is only a codification of pre-existing laws. The decision for particular performance for restitution of conjugal rights or for an injunction is covered under Rule 32 of Order 21 of the Code of Civil Procedure.

3.     Section 9 of the Hindu Marriage Act shouldn’t infringe Article 14 and article 21 of the Indian Constitution, if the objective of the decree in the said Act for the recovery of conjugal rights is understood in its correct context, and if the manner of execution in situations of disobedience is kept in mind.



Tagged: Supreme Court   Justice RF Nariman   Public Interest Litigation   PIL   Hindu Marriage Act   section 22   Special Marriage act   Code of Civil Procedure   coercive act   Article 21   Indian constitution   Civil Procedure Code   conjugal rights   Andhra Pradesh High Court  
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