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Restitution of Conjugal rights

  • IAS NEXT, Lucknow
  • 27, Jan 2022
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The Supreme Court is expected to begin hearing a fresh challenge to the provision allowing restitution of conjugal rights under Hindu personal laws.

About Conjugal rights

  • Section 9 of the Hindu Marriage Act, 1955 deals with restitution of conjugal rights. 
  • It recognises one aspect of conjugal rights — the right to consortium and protects it by allowing a spouse to move court to enforce the right. 
  • Conjugal rights are rights 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. 
  • Conjugal Rights includes:
    • Living together: The spouses or the married couple should live together
    • Marital intercourse: The spouses or the married couple have rights and duties together with each other and have physical or sexual relationships.
    • Comfort to each other: The spouses should give comfort to each other like; emotional and mental comfort.
    • Matrimonial Obligation: The married couple is supposed to share the responsibility of the households as well. 

Why has the law been challenged? 

  • Main ground is that it is violative of the fundamental right to privacy. 
  • It 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. 
  • 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. 
  • Also in question is 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.