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Why Forced Restitution Of Conjugal Rights Defies Ideas of Liberty, Equality

In June 1885, a 21-year-old woman, calling herself ‘Hindu Lady’, wrote two letters to The Times of India attacking the ‘wicked institutions’ of infant marriage and enforced widowhood. 

This was Rukhmabai Raut, who had been married at the age of 11 to Dadaji Bhikaji, her stepfather’s 19-year-old cousin. In the letter, she expressed anguish at facing a lawsuit filed against her by her husband for the restitution of conjugal rights by securing her presence with him.

Put simply, restitution of conjugal rights is a spouse’s right to compel the other spouse into sexual companionship. Although courts have debated the meaning of restitution of conjugal rights, there is little doubt that this is what ultimately implies.

More than 100 years later, this provision continues to be in statute books, currently pending before the Supreme Court over the question of its constitutional validity. It is doubtful if in a constitutional democracy, based on the framework of liberty, and equality, a provision compelling a spouse on “conjugal” rights can be termed as valid. It is also doubtful what aim this provision serves today. 

There is currently a petition pending in the Supreme Court challenging the provision’s constitutional validity, as we detail later.

The Case of Rukhmabai

The case of restitution of conjugal rights against Rukhmabai is a major point in the history of family laws and the feminist movement in India. Contrary to the upper-caste Hindu practice, Rukhmabai had not immediately moved to her in-laws’ home, opting instead to stay with her family and study. 

A few years later Bhikaji filed the suit on conjugal rights. But Rukhmabai, now 22, refused to live with him citing three reasons: his inability to provide maintenance and residence, his ill-health and his character. Her lawyers also argued that the marriage took place when she was a child and thus could not be forced on her.

Justice Pinhey of Bombay High Court decided in her favour, declaring that “it would be a barbarous, a cruel, a revolting thing to do to compel a young lady under those circumstances to go to a man whom she dislikes, in order that he may cohabit with her against her will”.

The judgement was a rare occasion when a woman’s wishes were heeded in a marriage. It led to a massive uproar among those who were a part of the nationalist movement of the time. Bal Gangadhar Tilak was among the many leaders who saw it as “interference with Hindu practices”. Funds were collected for appeal to the next authority but Rukhmabai was supported by reformist voices.

Bhikaji ultimately filed an appeal where this decision was reversed by Justice Melvill and was granted his right to the restitution of conjugal rights. Rukhmabai refused to comply with the court order, opting instead for potential imprisonment. The issue was resolved only after she paid her husband a hefty compensation. Two years later, Bhikaji remarried and Rukhmabai went on to study abroad and became a successful doctor.

The story presents two things – first, the starkly patriarchal and disturbing nature of the remedy of restitution, and second, the imposition of upper-caste Hindu practices through the Hindu laws. Rukhamabai came from the marginalised Suttar (carpenter) caste where community customs allowed for widow re-marriage and perhaps, a woman’s right to dissolve her marriage. Her own mother had remarried after the death of her husband.

What Does Restitution Mean

Despite the concerns it raises, the provision continued in the Section 9 of the Hindu Marriage Act, 1955 which provides that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the other party may apply to the court for restitution of conjugal rights. It was argued at the time that this was relevant in the context of the Indian tradition of arranged marriages because it allowed for reconciliation. 

The explanation attached to the section further provides that the burden of proving the existence of the “reasonable excuse” lies with the spouse who has “withdrawn from the society” of his/her spouse. Thus, for instance, if a woman refuses to live with her husband because he is abusive, the burden of proving this is on the woman.

An identical provision is present in almost all other laws. Section 22 of the Special Marriage Act, 1954, a law largely modelled on the Hindu Marriage Act, 1955 although aimed at secular remedies, says the same.

Till 1923, the order of restitution could be enforced through civil detention or attachment of property under Code of Civil Procedure, a method similar for enforcement of money decree, contracts and so on. Today, it can be enforced through the attachment of property.

Restitution essentially is a concept in property law that literally means restoration of anything to its rightful owner; or the act of making good or giving equivalent for any loss, damage or injury; and indemnification.

Pinhey J pointed out in his judgement that the remedy did not exist in Hindu law and was imported from English law. The provision’s origin lies in medieval Europe where the church had the power to forcibly restore wives who escaped from their husbands. It was a part of the English law under the Matrimonial Causes Act, 1937. However, since 1970, the provision has been abolished in the United Kingdom. The Law Commission of the United Kingdom while recommending the abolition of the remedy noted that “a court order directing adults to live together is hardly an appropriate method of attempting to effect a reconciliation”. The provision has been done away in the USA too. 

But as scholars point out, the provision “is an excellent example of a patriarchal tool long fallen into disuse in England, yet still being employed against Indian women in the 21st century”.

Under Section 13(1A)(ii) of the Hindu Marriage Act, if there has been no restitution of conjugal rights between the parties for a period of one year or more after the passing of a decree for restitution of conjugal rights, then the same can be taken as a ground of divorce.

What is a ‘reasonable excuse’?

As we said earlier, if the partner can prove a reasonable excuse for the withdrawal of conjugal rights then a decree of restitution cannot be passed.

The standard of “reasonableness” is a very common principle of legal systems found in various laws. The law expects us to act as a “reasonable person” and not sensitive. But “reasonableness” is a vague principle. Legal Scholar Usha Ramanathan, in her study of cases between 1920-1950, finds that the standard of reasonableness, although “taking on a mask of principle”, is largely a sweeping “generalization that displaces difference and produces stereotypes” about women.

This makes the remedy of restitution particularly vulnerable to patriarchal expectations of wives. Thus, in a range of cases relating to women working away from home, husbands would file petitions for restitution to force their wives to leave their jobs and move back to the home of their husbands or in-laws. Courts often obliged the husbands citing “the sacrosanct nature of marriage” and “holy duties of [the] wife”. 

Thus, in a 1977 case, the Punjab and Haryana High Court held that a wife’s refusal to resign from her job amounts to withdrawal from the “world of the husband” and thus is a ground for restitution. In this case, the wife had been working for a long time prior to her marriage. The court held that marriage is a holy union for the performance of marital duties with her husband where he may choose to reside and to fulfil her duties in her husband’s home.

Flavia Agnes argues that this reeks of the master-servant concept where only the husband gets to decide where the parties would reside. This is particularly because consent is not a requirement for a valid marriage under the Hindu law. Under section 5 of the Hindu Marriage Act, a valid marriage can be solemnised irrespective of the consent of the woman.

Today what constitutes a reasonable excuse is more consistent and courts have held that a wife cannot be forced to live with her husband against her wishes. A husband’s abusive behaviour may be considered reasonable justification against an application of restitution.

Yet, husbands continue to file for it seeking to enforce patriarchal expectations of women in marriage.  Thus, in 2019, a husband filed a petition seeking restitution of conjugal rights arguing that his wife was living with her parents. The wife argued that she had left him because he and her in-laws would beat her for money and even dragged her out of the house.

The court does not allow the petition of the husband but it operates overall with the patriarchal logics of expectations of wives. It notes:

“In our society, importance is given to the wishes of the husband. Even if the wife is not comfortable with her in-laws, she has to follow the wishes of her husband and stay there along with the parents of her husband in order to respect the wishes of her husband. However, in the changing scenario of the lifestyle and considering the developing concept of nuclear family, importance is also required to be given to the wishes of the wife.”

Thus, the court continues to legitimise the importance of “the wishes of husband” and reduces physical violence against women to “difference of attitude” and “lifestyle”.

Again in a matter of restitution, the Madhya Pradesh High Court noted that “the institution of marriage is a pious institution with solemnity attached to it. Husband and wife both are expected to live together with [a] sense of adjustment and co-existence”. In this case the order allowing the petition was passed with the agreement of the wife but overall, the gendered expectation of marriage remains.

Constitutional framework

The provision is superficially neutral and both parties can use the provision. Thus, wives who have been deserted by their husbands can file for restitution too to restore their marriage or secure their rights in the marriage. 

Men have often used the provision to escape their liability in marriage or harass their wives. Flavia Agnes writes that the provision is often used to derail a wife’s petition for maintenance. Courts have held that if a wife refuses to live with her husband “without sufficient reason”, then she can be disentitled from maintenance under section 125 CrPC. Although there is a case pending in front of the Supreme Court on this matter due to different ruling by different high courts on the right to maintenance of a wife in case of decree of restitution against her. 

Agnes points out that sometimes a petition for restitution is also filed to retaliate against a criminal case filed by the wife for cruelty.

Petition Against Provision

Currently, there is a petition pending in the Supreme Court challenging the constitutional validity of the provision, arguing that the provision amounts to a “coercive act” violating the right to dignity, privacy, and sexual and decisional autonomy. The petitioner has further argued that even though superficially neutral, the provision disproportionately harms women, treating them as chattels.

The Centre, in its reply, said that, “the intention of restitution of conjugal rights is to preserve the institution of marriage, allowing the spouses access to a relatively soft legal remedy by which they can iron out differences arising out of the normal wear and tear of the matrimonial life with judicial intervention”.

This is not the first time the provision is being challenged. In 1983, the Andhra Pradesh High Court in the case of T. Sareetha vs T. Venkata Subbaiah, the provision was declared unconstitutional on the ground of violation of right to privacy. Sareetha was barely 16 when she was married off, and later her husband sought the restitution of his conjugal rights. The court held that this remedy is “almost exclusively” sought by husbands, and rarely by women. The court termed the provision as “engine of oppression” and noted that:

“….by enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievable whereas the husband’s can remain  almost as it was before this is so because it is the wife who has to beget and bear a child (sic)…this remedy cripples the wife’s future plans of life….Thus the use of remedy of restitution of conjugal rights in reality becomes partial and one-sided and available only to the husband.”

However, when the matter reached the Supreme Court, the court did not agree with the Andhra Pradesh High Court and instead upheld a decision of the Delhi High Court on a similar matter. In a similar petition challenging the remedy of restitution, the Delhi High Court had held that constitutional law has no place in home. Maintaining the patriarchal notions of divisions of public and private, the Delhi High Court held that bringing constitutional law in home “is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution. In the privacy of the home neither Article 21 nor Article 14 have any place”.

Recently, however, in Joseph Shine v. UOI, the Supreme Court denied this reasoning of intimate space being beyond constitutional reach. In a case concerning the constitutional validity of the criminalisation of adultery, the court held that it cannot be said that rights to dignity, privacy, and autonomy cease to exist on entering marriage. The court held that marriage does not result in ceding of the autonomy of one spouse to another. Similarly, in the privacy judgment, the Supreme Court has recognised privacy and sexual autonomy to be essential feature of right to dignity. One cannot be compelled by coercive acts of the State. 

 

[The author would like to thank Harikartik Ramesh for their excellent comments and suggestions.]

  • Surbhi Karwa is a feminist law researcher. She has a masters in law from University of Oxford. She is a columnist at Behanbox where she writes a monthly column ‘The Gender Files’ casting deep insights into gender and law in India

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