The challenge of “restitution of marital rights” gains importance in the debate on the criminalization of marital rape
A petition challenging a law that forces a woman to return to her husband and denies her sexual autonomy has been pending before the Supreme Court for months without a hearing.
Restoration of Marital Rights, a medieval ecclesiastical law of England codified in several statutes including the Hindu Marriage Act and the Special Marriage Act, owes its survival largely to the fact that marital rape is not recognized like a crime.
6 month break
The petition, titled Ojaswa Pathak vs Union of India, was filed in the Supreme Court in February 2019. The case was last heard on July 8, 2021. It was later released on July 22, 2021. However, the Supreme Court’s website does not indicate any another date. Meanwhile, Judge Rohinton Nariman, who had led the bench that heard the case, has retired.
The furious debate over the criminalization of marital rape forces a rethink of how marital rights restitution provisions, while gender-neutral, place an additional burden on women and pose a direct threat to their bodily autonomy, privacy and dignity. individual.
Penalty for women
Since marital rape is not an offence, the provisions for the restitution of marital rights, when they target a woman, take away her bodily autonomy and force her to stay with her husband. If a woman does not comply to return to her husband, the court could even seize his property.
Also read: Key judgments puncture government’s defense against marital rape
Marital rights restitution provisions like Section 9 of the Hindu Marriage Act and Section 22 of the Special Marriage Act allow a husband or wife to move the local district court, complaining that the other partner has “withdrawn” from the marriage without “reasonable cause”. The petition gives the court the power to order the “withdrawn” spouse to return to the marital home. Order 21 Article 32 of the Code of Civil Procedure allows the court to seize the property of the “wandering” spouse if he does not comply with his return order.
The meaning and scope of key words in provisions such as “withdrawn” or “reasonable cause” are ambiguous. For example, if a wife stays away from her husband for his job, would that mean she has “withdrawn” from the marriage. Also, “reasonable cause” would differ from person to person.
Also read: Need more time to decide on taking a stand on marital rape, Center tells HC
Over the years, courts have treated the law of “restitution of marital rights” in contrasting ways. Judgments shifted from the idea of the “sacredness of marriage” to the need to respect women’s privacy and dignity.
In one of the first judgments of the 1960s, the High Court of Punjab and Haryana of Tirat Kaur case, upheld the restitution of marital rights, noting that “the first duty of a wife towards her husband is to submit obediently to his authority and to remain under his roof and under his protection”.
The courts, in a series of judgments in the 1980s, upheld the law, finding that the wife’s denial of marital and sexual life to the husband by refusing to return permanently to him is an act of both mental and mental cruelty. physical.
Even the Supreme Court, in Saroja Rani the case, concluded that marital rights, i.e. the “right of husband or wife to each other in society, are inherent in the very institution of marriage”.
However, another series of judgments, notably that of the High Court of Madhya Pradesh in Vibha Shrivastava case, breaks the “orthodox concept of the Hindu wife as Dharmpatni, Ardhangini, Bharya or AnugaminI”.
“This orthodox concept of the wife and the expectation of her to submit to the wishes of the husband has undergone a revolutionary change with the education and the high level of literacy of women and with the recognition of the equal rights of women. in the constitution and abolition of gender distinction in all spheres of life. She is a partner in marriage with equal status and rights as the husband,” the High Court noted.
Marriage cannot be a tyranny, the High Court had noted.
In the well-known case of actor Sareetha, the Andhra Pradesh High Court did not mince words when it said that “sex cohabitation is an inseparable ingredient of a marital rights restitution decree” .
The High Court has said that a marital rights restitution order grants a spouse not only the right to companionship but also the right to “marital relations” with the other spouse. In short, the provision “compels, through legal process, an unwilling party to have sexual relations against their consent and free will with the holder of the decree.”
In the sareetha In this case, the High Court was keen to point out that “ancient Hindu law viewed the duty of the Hindu wife to conform to her husband only as an imperfect obligation incapable of being performed against his will. He left the choice entirely to the free will of the wife”.
The fight against marital rape and the restoration of marital rights took on new life with the nine-judge bench of the Supreme Court that upheld privacy as a “constitutionally protected right” that gives a person the complete authority to decide matters of personal privacy, inviolability of family life, home, sexual orientation, etc.
The Supreme Court, in its recent Joseph Shine judgment, concluded that the state cannot exercise authority in a person’s private affairs. “The right to privacy is an inalienable right, closely associated with an individual’s innate dignity, and the right to autonomy and self-determination in making decisions,” the court said.
The Court also held that any interference by the state in a person’s choice of a partner causes “a serious chilling effect on the exercise of freedoms guaranteed by the Constitution”.
Now is the time for the higher court to pick up where it left off.