CRITICAL ANALYSIS OF RESTITUTION OF CONJUGAL

RIGHTS IN CONTEXT TO WOMEN’S RIGHTS

INTRODUCTION

Hindu Marriage Act, Section 9

If one spouse has abandoned the other without good reason, the abandoned spouse can file a
petition for Restitution of Conjugal Right in District Court.
According to the law of marriage, a person's spouse must provide them with "companionship
and comfort.1
In order for a decree of Restitution of Conjugal Right to be issued, it is clear that the
following three requirements must be met:
The respondent has stopped engaging with other people without a good explanation.
The court agrees with the petitioner's assertions, and it sees no reason why the requested
relief should not be granted.2
The topic of whether or not to restore conjugal rights is fraught with debate and controversy.
There are others who believe society benefits from keeping couples together in marriage.
Nonetheless, there are many who argue that it is pointless to force a reluctant party to live
with someone they do not see eye to eye with. Restoring conjugal rights breaches a person's
most fundamental rights by interfering with their ability to choose with whom they share their
home.
Therefore, the willingness of the parties to remain together should be the primary
consideration, and the parties should not be compelled by a court's order to remain together.
Marriage is regarded as something pure and sacred, and it is preferable not to force the parties
to live together when their marriage is merely formal and cannot be salvaged.3

In cases involving marital rights, there are two aspects to the burden of proof. Petitioner must
first provide evidence that spouse has deserted them. Now it is up to the respondent to prove
that there was a good reason to require the information. Reasonable cause exists if the
Respondent is unable to continue living with the Petitioner due to the Petitioner's marital
wrongdoing, act, or omission. A restitution decision in favour of the petitioner could be
obtained, ordering the respondent to return to living with the spouse if the respondent fails to
establish fair reason. If it can be shown that the respondent has genuine and reasonable
grounds for rejecting the petition, then the petition will be thrown out.4

1
Ms Mehwish Khalil, “Constitutional Validity Of RCR Under Hindu Law”, legalserviceindia.com,

https://www.legalserviceindia.com/legal/article-10218-constitutional-validity-of-rcr-under-hindu-law.html

2
Ibid
3
Manvee Kumar Saida, “A Critique on the Provision of Restitution of Conjugal Rights under the Hindu
Marriage Act, 1955”, lexdogma.com, (Nov 25, 2019), https://www.lexdogma.in/post/a-critique-on-the-
provision-of-restitution-of-conjugal-rights-under-the-hindu-marriage-act-1955

4
Ms. Vasavi Mahajan, Restitution of Conjugal Rights: A Critical Analysis, latestlaws.com, (27 September
2022) https://www.latestlaws.com/articles/restitution-of-conjugal-rights-a-critical-analysis-189967
“England was the first country to use this remedy that India followed in Moonshee
Bazloor v. Shamsoonaissa Begum . 5  Customary provisions of section 9 of the Hindu
Marriage Act, 1955 are still in place in India despite the fact that England was the first
to establish and then remove the same remedy in 1970. 6 This section 9 is”
unconstitutional because it invades a woman's right to privacy, which is a fundamental
human right. One's right to life and liberty is violated when the court interferes with a
person's decision to dissolve their marriage and orders return of conjugal rights. 7

“India has outdated legislation against sexual violence. One such crime that lacks an
appropriate penalty is marital rape. There are some in our culture who refuse to
acknowledge that raping one's spouse is a serious crime. The relevant laws are sexist
and pose an insult to women's intelligence. So, it is fair to say that the concept of
"restitution of conjugal rights" is upsetting and totally ignores a woman's ability to live free
from violence and harassment, as well as her freedom to choose her own religion and means
of economic support. The constitutionality of such a provision is unclear, and this paper
will examine that uncertainty by citing a wide range of case laws .”

LACK OF REGULATIONS PROHIBITING CRIME AGAINST MARRIED

WOMEN

Although marriage is highly respected in India, a man has the right to commit any act
of violence he wishes against his wife. Because it was enacted so soon after India's
independence, Hindu law is widely viewed as being in violation of the Bill of Rights.
Nonetheless, sexism persists, and India's laws remain based on outdated ideas about
gender roles. Wives in India are often pressured to gratify their husbands' sexual
desires regardless of whether or not they feel comfortable doing so. This demonstrates
that men are never held accountable for the rape of their wives. Criminal procedures
should be used to handle all such cases. All crimes involving sexual contact with a
woman without her consent are laid out in great detail under section 375 of the Indian
Criminal Code. Under exclusions section, however, it is made plain that if the wife is
over the age of 18, sexual activity between the husband and herself does not constitute
rape. (as per a verdict from 2017) According to Section 9 of the Hindu Marriage Act
of 1955, the woman must remain in an abusive marriage unless she can prove that she
has taken reasonable precautions to prevent such abuse. These laws degrade women
and undermine their inherent right to live a dignified life. The High Court of
Chattisgarh declared in August 2021 that “a lawfully married woman would not be
regarded a victim of rape if her husband had sexual relations with her, even if those
relations were forced or occurred without her consent.” 8 Till date, the courts fail to

5
Moonshee Bazloor v. Shamsoonaissa Begum, 1866-67 (11) MIA 551.
6
Rangasree, Restitution of Conjugal Rights under Hindu Law Through a Feminist Approach, primelegal.in, (13
March, 2022), https://primelegal.in/2022/03/13/restitution-of-conjugal-rights-under-hindu-law-through-a-
feminist-approach/
7
Ms. Vasavi Mahajan, Restitution of Conjugal Rights: A Critical Analysis, latestlaws.com, ( 27 September,
2022), https://www.latestlaws.com/articles/restitution-of-conjugal-rights-a-critical-analysis-189967

8
Murali Krishnan, MARITAL RAPE IS STILL NOT A CRIME IN SOME PARTS OF INDIA, rfi.fr, (27
September, 2021), https://www.rfi.fr/en/international/20210927-wk-marital-rape-is-still-not-a-crime-in-india
acknowledge that a wife may be independent and successful in her own right in the
same way as a single woman can. 9

More than half of sexual assaults on married women are motivated by men's sexist
belief that they "own" the wife after the wedding. A victim of domestic violence has
the right to leave her spouse in peace, and her abuser should face consequences for his
actions. The most heart-breaking aspect of marital violence is that victims are often
discouraged from seeking justice by their own families, leaving them with little choice
but to continue suffering at the hands of their abusers. What this demonstrates is that a
married woman's rights and dignity cannot be protected under the Indian
Constitution. 10

“THE RESTITUTION OF CONJUGAL RIGHTS TAKES A BACK SEAT TO

WOMEN’S RIGHTS”

The restitution of conjugal rights, from a feminist perspective, should be seen not as a
legal entitlement but as a mutual duty of spouses towards one other. Approaches
should prioritise safeguarding the rights and respect of married women. If a woman
has suffered physical, emotional, or sexual abuse at the hands of her partner, she
should be able to decline to resume sexual intercourse with that person. Divorce
should be possible without the other partner's permission if they did not give their
informed consent.
Additionally, women should not be coerced into remaining in an abusive marriage by
the restoration of conjugal rights. Instead, efforts should be directed at helping women
obtain the necessary legal and financial resources to escape abusive relationships and
start new, more fulfilling lives as single adults. Women should be encouraged and
given the resources they need to make educated choices about their life. (final)

Just a few decades ago, when "divorce" was considered as a dreadful deed, many
people believed that a woman should make the moral decision by staying in an abusive
marriage. The concept "goes all the way back to the days when slavery and its variants
were accepted as the norm, “the court ruled in Shakila Banu v. Gulam Mustafa . This is
especially true with the implementation of India's constitution, which guarantees basic
freedoms like the right to vote and equal access to education and employment, and
authorises the government to take additional precautions guaranteeing the protection
of females of all ages. ” 11 This exemplifies why it's crucial to ensure women's safety
and how they can fully participate in society.
“Validity of restitution of conjugal rights was rendered by Navtej Johar v. Union of
India12 (Section 377 judgment).  Since the remedy is open to both the husband and the wife,
many who support restoring women's conjugal rights say the law can't possibly target them
unfairly.13”

9
Rangasree, Restitution of Conjugal Rights under Hindu Law Through a Feminist Approach, primelegal.in, (13
March, 2022), https://primelegal.in/2022/03/13/restitution-of-conjugal-rights-under-hindu-law-through-a-
feminist-approach/

10
Ibid
11
Shakila Banu V. Gulam Mustafa ILR 1971 Bom 714.
12
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
“The Andra Pradesh High Court ruled in T. Sareetha v. Venkata Subbaiah that Article
9 of the Hindu Marriage Act, 1955 constituted an infringement on the right to equality
protected by Article 14, as well as the right to freedom and privacy guaranteed by
Article 21. Yet the wife was defended by saying that she has the right to choose
whether or not to reproduce and that no one can force her to do so. She has the right to
discretion in matters such as these. “The court's enforcement of Section 9 of the Hindu
Marriage Act is a violation of her right to privacy and her freedom of choice. 14
A single judge on the Delhi High Court disagreed with this ruling, overturning the majority
opinion of the court, in the case of Harvinder Kaur v. Harmander Singh Choudhry15.”
Although the court acknowledged that sexuality was the main unifying factor in the previous
judgement, he disagreed with this evaluation since he considered sexual relations to be
merely one of many benefits of cohabitation. According to him, this proved that claims that
restoring conjugal rights constitutes "the bluntest type of state breach" of "marital privacy"
were incorrect. It was deemed constitutional since Articles 14 and 21 were both upheld.16”
“This view was followed by the Supreme Court in the case of Saroj Rani
v.  SudershanKumar17 When the court has ruled that a restitution of conjugal rights judgement
affords the husband and wife a chance to reconcile.” It's supposed to help keep couples
together and reduce social problems. The judicial panel sees the government's raid on the
couple's marital bedroom as unremarkable.18”
While the various courts present diverse justifications for why court interference in a
marriage is appropriate, they consistently overlook the fact that their actions have the
most negative impact on women. When it comes to divorce cases, the courts only care
about restoring the marriage and make no determinations that would uphold a woman's
respectability. Yet again, restoring a woman's marital rights is prioritised before
saving her own life.

PREJUDICED IDEAS AND ASUMPTIONS ABOUT SEXUAL ASSAULT

AGAINST MARRIED WOMEN

One of the most common misconceptions in India is that rape can't happen inside the context
of a marriage. As if being a victim of rape or sexual assault wasn't bad enough, society often
downplays the trauma these women endure. Some Indians believe that being raped by a
stranger is more devastating than being raped by one's husband because of the chemistry and
sexual connection already present in the marriage. Domestic violence, especially against
married women, is widely tolerated in India despite its prevalence. This may be due to
cultural and traditional factors, orthodox beliefs, rape myths, toxic masculinity, or legal
loopholes. To be sure, there is less proof that sexist attitudes in the context of marriage are
13
Divya Srinivasan, ‘Restitution of Conjugal Rights’ is an archaic, unconstitutional law and its time is up,
theleaflet.in, (November 2, 2018), https://theleaflet.in/restitution-of-conjugal-rights-is-an-archaic-
unconstitutional-law-and-its-time-is-up/

14
T Sareetha v. T Venkatasubbaiah AIR 1983 AP 356
15
Harvinder Kaur v. Harmander Singh, AIR 1984 Del. 66.
16
Shraddha Upadhyay, Restitution of Conjugal Rights: Legal Intrusion Into the Lives and Bodies of Women,
feminismindia.com, (April 11, 2019), https://feminisminindia.com/2019/04/11/restitution-conjugal-rights-
women/

17
Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562
18
Shraddha Upadhyay, Restitution of Conjugal Rights: Legal Intrusion Into the Lives and Bodies of Women,
feminismindia.com, (April 11, 2019), https://feminisminindia.com/2019/04/11/restitution-conjugal-rights-
women/
pervasive in India. The business of a family is considered too personal for outsiders to
become involved with. Victims of violence are discouraged from speaking out because of
this. When it comes to sexual assault, there appears to be a "culture of silence" that runs in
families. So, victims regularly experience the legal system's indifference and cruelty.19
In this case, Huhhram v. Misri Bai20, after a long history of alleged abuse at the hands of her
husband and her father-in-law, the woman finally decided to leave the marital home. Yet, the
judge's decision to grant the spouse's request for "restitution of conjugal rights" forced her to
return to the marital residence and experience the same mistreatment she had previously
endured. What this demonstrates is that the court could care less about respect for women's
rights.21
According to Hindu beliefs, "a marriage's prosperity depends on three things: moral
behaviour, having children, and being sexually satisfied." Restoring conjugal rights as a
matter of personal law violates provisions of the Indian constitution, according to the court's
decision in State of Bombay v. Narasu Appa Mali22 It's unusual for a wife to sue her husband
for the restoration of conjugal privileges. Most of the time, the guy is blamed for being cruel
or trying to avoid paying alimony.
In, Swaraj Garg v. K.M. Garg23, the court threw out the order because of social
considerations, notwithstanding the fact that the defences listed the validity of subsections (e)
and (g) of Article 19(1) was not challenged. When the wife declined to take time off work to
be with her husband on a business trip, he filed a lawsuit seeking restoration of conjugal
rights.
“In, Shanti v. Ramesh24, husband filed for “restitution of marital rights” when wife refused to
quit her employment. The husband was awarded “restitution of conjugal rights” since his
wife's unwillingness to move back in with him was unreasonable because of her job. The
court found that the wife's claim that she had to leave the marital home because she had to
follow her career made no sense and that she had thus violated her right to choose where she
lived and worked.25”
As a result, sexism, which gives women a lower social status, contributes to the prevalence of
domestic violence in India.
Given the critical need to safeguard women's marriage-related human rights, Section 9's
unconstitutionality could help resist patriarchy in India. The right to equal protection under
the law, which is guaranteed to all Indian citizens by Article 14 of the country's constitution,
is considered as an integral aspect of marriage. While it is the state's objective to protect
marriage wherever possible, forcing a couple to stay together is counterproductive and
undermines the institution's value.26
19
Anik, Restitution of Conjugal Rights Under Hindu Law Through a Feminist Approach, vidhikarya.com,
(March 11, 2022), https://www.vidhikarya.com/legal-blog/restitution-of-conjugal-rights-under-hindu-law-
through-a-feminist-approach
20
Huhhram v. Misri Bai, AIR 1979 MP 144.

21
Anik, Restitution of Conjugal Rights Under Hindu Law Through a Feminist Approach, vidhikarya.com,
(March 11, 2022) https://www.vidhikarya.com/legal-blog/restitution-of-conjugal-rights-under-hindu-law-
through-a-feminist-approach
22
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84
23
Swaraj Garg v. K M Garg AIR 1978 Delhi 296.
24
Shanti v. Ramesh LJ 1961 All 67
25
Rangasree, Restitution of Conjugal Rights under Hindu Law Through a Feminist Approach, primelegal.in, (13
March, 2022), https://primelegal.in/2022/03/13/restitution-of-conjugal-rights-under-hindu-law-through-a-
feminist-approach/
26
Gaurav Chaliya, Jayesh Kumar Singh, Restitution of Conjugal Rights: An Anathema to Human Rights,
oxfordpoliticalreview.com, (October 14, 2020), https://oxfordpoliticalreview.com/2020/10/14/restitution-of-
conjugal-rights-an-anathema-to-human-rights/
In Section 9 cases, spouses should be allowed to attend mediation sessions where the
mediator will work to save their marriage. These techniques may be used, however, only with
the victim's "free consent," as determined by a specially formed panel that will examine each
case individually to prevent gender-based violence against women.27

27
CEDAW, General recommendation No. 35 on gender-based violence against women, updating general

recommendation No. 19, CEDAW/C/GC/35 (July, 2017) https://tbinternet.ohchr.org/Treaties/CEDAW/Shared

%20Documents/1_Global/CEDAW_C_GC_35_8267_E.pdf