Challenge to Restitution of Conjugal Rights
Ojaswa Pathak v Union of India
The Supreme Court will decide if the restitution of conjugal rights provisions under codified family laws are constitutional.
Petitioner: Ojaswa Pathak
Lawyers: Sanjay R. Hegde; Pranjal Kishore; Indira Jaising; Atul Shankar Vinod; M.P. Vinod
Respondent : Union of India
Lawyers: Prashant Padmanabhan; Aanchal Singh; Paras Nath Singh; Aishwarya Bhati; M. Shoeb Alam; Fauzia Shakil
Case Number: WP (C) 250/2019
Last Updated: October 19, 2021
Do the provisions for restitution of conjugal rights violate the right to privacy and individual autonomy under Article 21?
Do the provisions for restitution of conjugal rights violate the right to equality under Article 14 by placing an additional burden on women?
The students of Gujarat National Law University (GNLU), Gandhinagar have filed a public interest litigation challenging various restitution of conjugal rights provisions under codified family laws. They specifically challenge the constitutional validity of Section 9 of the Hindu Marriage Act, 1955, Section 22 of the Special Marriage Act, 1954 and Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908 (CPC).
The students argue that this “legislative package” allowing restitution of conjugal rights is inherently violative of the right to equality and life provisions. Section 9 of the Hindu Marriage Act, 1995 states that if a spouse withdraws from the society of the other spouse without a reasonable excuse, the District Court may decree the restitution (in this context, return to, or restoration of) the ‘marital’ rights of the appellant spouse. Section 22 of the Special Marriage Act, 1954 also provides the same, but is applicable to persons marrying under the Special Marriage Act, 1954. Order 21, Rule 32 of CPC provides for the enforcement of a decree for restitution passed by a District High Court.
The petitioners argue that although the provisions are gender neutral, it places a burden on women. Further, they note the unequal power structures in Indian families, and how this makes it more difficult for women to return to their husband’s home. It is noted that the origin of laws on restitution of conjugal rights is feudal English Law, where women were considered chattel, or property. They argue that this makes the provisions violative of Articles 14 and 15(1).
The petitioners also argue that the provisions are in violation of Article 21. This is because the restitution of conjugal rights violate the respondent spouse’s right to privacy and individual autonomy.