Context: The Supreme Court is expected to begin hearing a fresh challenge to the provision allowing restitution of conjugal rights under Hindu personal laws.
Background

Section 9 of the Hindu Marriage Act, 1955, which deals with restitution of conjugal rights, reads:

• When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights; and 
• The court, on 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, may decree restitution of conjugal rights accordingly.

Origin

• Concept of restitution of conjugal rights is codified in Hindu personal law now, but has colonial origins.
• Originating from Jewish law, the provision for restitution of conjugal rights reached India and other common law countries through British Rule.
• The British law treated wives as their husband's personal possession hence they were not allowed to leave their husbands.
• Similar provisions exist in Muslim personal law as well as the Divorce Act, 1869, which governs Christian family law.
• Incidentally, in 1970, the U.K repealed the law on restitution of conjugal rights.

About Conjugal Rights

• These rights are created by marriage, i.e. right of the husband or the wife to the society of the other spouse.
• The law recognises these rights— both in personal laws dealing with marriage, divorce etc, and in criminal law requiring payment of maintenance and alimony to a spouse.
• Section 9 of the Hindu Marriage Act recognises one aspect of conjugal rights — the right to consortium and protects it by allowing a spouse to move court to enforce the right.

Case under Section 9 of the Hindu Marriage Act

• If a spouse refuses cohabitation, the other spouse can move the family court seeking a decree for cohabitation.
• If the order of the court is not complied with, the court can attach property.
• The decision of the family court can be appealed before a High Court and the Supreme Court.
• When a spouse files for divorce unilaterally, the other spouse files for restitution of conjugal rights if he or she is not in agreement with the divorce.
• The provision is seen to be an intervention through legislation to strike a conciliatory note between sparring spouses.

Reason for Challenging the Law

• The law is being challenged now on the main grounds that it is violative of the fundamental right to privacy.
• The petition plead that a court-mandated restitution of conjugal rights amounted to a “coercive act” on the part of the state, which violates one’s sexual and decisional autonomy, and right to privacy and dignity.
• In 2019, a nine-judge Bench of the Supreme Court recognised the right to privacy as a fundamental right.
• The legal experts have pointed out that the nine-judge Bench’s landmark verdict in the privacy case set the stage for potential challenges to several laws such as criminalization of homosexuality, marital rape, restitution of conjugal rights, the two-finger test in rape investigations.
• The law is ex-facie (‘on the face if it’) gender-neutral because it allows both wife and husband to seek restitution of conjugal rights, the provision disproportionately affects women.
• It will also be argued whether the state can have such a compelling interest in protecting the institution of marriage that it allows a legislation to enforce cohabitation of spouses.

Instances of their Misuse

• Another pertinent matter to take into consideration is the misuse of this provision as a shield against divorce proceedings and alimony payments.
• Often an aggrieved spouse files for divorce from their place of residence and their spouse retaliates by filing for a decree of restitution in their place of residence.

Previous decisions by Supreme Court

• In 1984, the Supreme Court had upheld Section 9 of the Hindu Marriage Act in the case of Saroj Rani v Sudarshan Kumar Chadha.
• It held that the provision serves a social purpose as an aid to the prevention of break-up of marriage.
• In 1983, a single-judge bench of the Andhra Pradesh High Court had for the first time struck down the provision in the case of T Sareetha v T Venkatasubbaiah and declared it null and void.
• The court also held that in a matter so intimately concerned the wife or the husband the parties are better left alone without state interference.
• The court had also recognised that compelling “sexual cohabitation” would be of “grave consequences for women”.
• The Delhi High Court added that it is in the interests of the State that family life should be maintained, and that homes should not be broken up by the dissolution of the marriage of parents.
• The Supreme Court upheld the Delhi High Court view and overruled the Andhra Pradesh High Court verdict.

Significance of Conjugal rights

• Conjugal rights are an important factor in preserving family bonds. 
• It also recognises Article 21 of the spouse of the convict. The Spouse cannot be denied legitimate expectation to have a child.

Road Ahead

• Indian judicial system is reformative not punitive. Dowry deaths are a plague on society and women being emotionally and mentally manipulated and tortured for dowry are aplenty. Therefore, Marriage is not built upon the ceremonies but upon the autonomy and freedom of two individuals who agree to share them with each other.