NAME: KANISHK TYAGI

SAP ID: 500084696

ROLL NO.: R450220018

FAMILY LAW ASSIGNMENT

Restitution of Conjugal Rights OR

Deprivation of Privacy Rights
Marriage is described as "the civil status, state, or relation of one man and one woman linked
in law for life, for the execution of the obligations legally due on persons whose association
is founded on the distinction of sex to each other and the community."1 Marriage is the legal
union of a man and a woman for the purpose of mutual rights and obligations. The term
"conjugal rights" refers to a group of mutual rights.
Marriage is eternal, holy, and sacramental in Hindu law. Marriage's goals, according to Hindu
philosophy, are Dharma-righteousness, virtue, and justice, Praja or Santhana-procreation, and
Rati-pleasure. "Marriage is viewed as a socio-legally sanctioned pathway to progeny, owing
to ancestral debts and demands."2
Restitution of conjugal rights is a positive remedy created by the Hindu Marriage Act to
defend the institution of marriage. Despite the fact that it was created as a beneficial cure for
protecting sanctity and affirmation, the provision does not change with the times. Since the
institution of marriage has undergone various alterations, this treatment has only resulted in
confusion and complications.

1
Black’s law dictionary, 4th edition, 1968
2
71st Report of the Law Commission- the Hindu Marriage Act, 1955
T. Sareetha v Venkata Subbaih3 was the first case to deem this provision invalid. The Andhra
Pradesh High Court ruled in favour of restitution of conjugal rights over the right to privacy
in this case. This decision was later overturned in the Saroj Rani case4. However, it should be
remembered that when these rulings were handed down, the right to privacy was not deemed
a fundamental right. However, the Supreme Court has ruled that under Article 21 of the
Constitution, the right to privacy is a basic right. As a result, the provision's legality is called
into question.
"No one shall be deprived of his life or personal liberty unless in accordance with the method
prescribed by law," says Article 21. The storey is told in a harsh tone, yet the positive rights
of life and personal liberty are entrusted. Art 21 encompasses the preservation of personal
intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation
as a component of privacy. As stated in the T. Sareetha case, sexual activity without consent
only serves to "make one's body a vehicle for the propagation of another human being."
This results in the surrender of one's body to another's dominance, which is mental torment,
degrading dignity, and a flagrant violation of one's right to privacy.
A right to free choice is having complete autonomy over how one's body is perceived and
utilised for child conception. Forced marital cohabitation is a serious breach of one's right to
privacy, and it should never be done with the blessing and assistance of the law. "A decree of
restoration of conjugal rights so enforced violates the inviolability of the body and mind of
the person subjected to the decree, as well as the integrity of that person's marital privacy and
domestic intimacies." As a result, the restoration of conjugal rights opens up a lot of room for
degrading one's body's integrity and limiting one's autonomy in making decisions about
oneself.
Marriage, procreation, and sexual orientation are all important aspects of the right to privacy
that this clause violates. Even ancient Hindu law does not compel a wife to live with her
husband forcibly. "Hindu law itself, even while laying down the duty of the wife of implicit
obedience and return to her husband, has set down no such sanction or procedure as coercion
by the courts to force her to return against her will," the Bombay High Court remarked in Bai
Jiva v Narsingh Lalbhai.
In England, where marriage is regarded as a contract and the wife is regarded as a chattel to
be owned and possessed by the husband, restitution of conjugal rights began. The case of
Monshee Buzloor V Shumsoonaissa Begum in 1866 established the precedent in India.
However, in 1970, this remedy was repealed in the United Kingdom. It is apparent that
restitution of marital rights is a remedy that did not exist in ancient India; it was introduced in
India from England, despite the fact that it was abolished in England in 1970. Furthermore,
this remedy violates the fundamental right to privacy.
As a result, it is past time for the legislature to update this antiquated unlawful provision in
order to defend dignity and privacy rights.

3
T. Sareetha v Venkata Subbaiah, AIR 1983 AP 356
4
Saroj Rani v Sudarshan Kumar Chanda, AIR 1984 SC 1562