Context: Recently, a petition challenging the provision allowing restitution (recovery) of conjugal rights under Hindu personal laws (Hindu Marriage act 1955) which has been pending in the Supreme Court (SC) for months without a hearing.

About Conjugal rights

• Conjugal rights are the social rights of either spouse, emerged due to a marriage.
• It is an inherent right of the husband or wife to one another’s society is in the institution of marriage.
• It include the right to the other's consortium (company), cohabitation (sexual intercourse), and maintenance(including property related matters) etc.
• Denial of conjugal rights leads to the restitution of conjugal rights, by enforcement.
• In india, due to non availability of Universal Civil Code(UCC), all the marriage and divorces related affairs are regulated according to the personal laws.
• And as a result, the conjugal rights are also regulated accordingly under concerned personal laws.

Reason for Challenging the Law

Violation of Rights: The law is being challenged now on the main grounds that it violates the fundamental right to privacy.

• The plea argues 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.

Biassed Against Women: Although the law is gender-neutral since it allows both wife and husband to seek restitution of conjugal rights, the provision disproportionately affects women.

• Women are often called back to marital homes under the provision, and given that marital rape is not a crime, leaves them susceptible to such coerced cohabitation.

Not in Consonance with SC Judgements: In the recent judgement of Joseph Shine v Union of India 2019, the SC has put great emphasis on the right to privacy and bodily autonomy of married women, stating that marriage does not take away their sexual freedom nor choice.

• If everybody is entitled to their bodily autonomy, choice, and right to privacy, how can a court mandate two adults to cohabit if one of them does not wish to do so.

Misuse of the Provision: 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.