Writ Petition (Ojaswa Pathak) SummaryChallenge to Restitution of Conjugal Rights
Background and Issues
The Hindu Marriage Act, 1955, Special Marriage Act, 1954 and the Code of Civil Procedure, 1908 (CPC) together provide for the restitution of conjugal rights. If spouse A withdraws from spouse B, then under the first two laws, spouse B can approach a Court to seek the return of spouse A. Such a Court order is enforced through the provisions of the CPC.
The petitioners in this case, students from the Gujarat National Law University (GNLU) have challenged the constitutionality of this legal framework that governs restitution of conjugal rights. They claim it violates the constitutional rights to life, equality and non-discrimination. The Court will decide if this is indeed the case.
What Does the Petitioner Seek?
The petitioner prayed for the Court to
Declare s 9 of the Hindu Marriage Act, 1955 unconstitutional, since it violates the rights to equality, non-discrimination and life.
Declare s 22 of the Special Marriage Act, 1954 unconstitutional, since it violates the rights to equality, non-discrimination and life.
Declare Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908 unconstitutional since it violates the rights to equality, non-discrimination and life.
Conjugal Rights Discriminate Women
The petitioners highlighted the ‘feudal’ origins of India’s conjugal rights legal framework – a time when women were considered to be property.
Also, while the petitioners admit that the conjugal rights framework per say is not discriminatory, the effect that it has on men and women end up being so considering the unequal power structures that mark Indian families.
In Dwarkadas Shrinivas of Bombay v The Sholapur Spinning and Weaving Co, the Court held that any assessment of the validity of a law must include the law’s actual effect in society. So, the petitioners argue that even though the laws themselves do not apply only to women, the Court must assess its effect in society.
Cohabitation is an ‘Intimate Personal Choice’
The petitioners state that a person’s freedom to choose is violated when the District Court’s decree forces them to return to their spouse. They note that the right to live with and have a sexual relationship with someone is a personal right. So, the framework’s provision to force a person to return to their spouse violates one’s right to privacy and personal freedom.
The petitioners refer to the Puttaswamy judgment on privacy to highlight that the right to privacy includes the right to bodily integrity and mental sanctity. They argue that the restitution of conjugal rights violates this right.
Conjugal Rights do not Serve the Best Interests of a Family
The petition refers to the findings of a committee formed by the Ministry of Women and Child Development on the status of women and children. The Committee had noted that the main focus of the framework around conjugal rights was to preserve the integrity of the ‘family’, However, it has since been misused to deny womens’ claim for maintenance or of cruelty. The committee suggested the deletion of the provisions related to restitution of conjugal rights, as it no longer serves the best interests of the family.