The Supreme Court on Friday issued notice to the Union Government on a Public Interest Litigation (PIL) challenging the law that gives powers to the courts to force a separated couple to stay together through a decree for restitution of conjugal rights.
A three-judge bench headed by Chief Justice Ranjan Gogoi sought response from the Ministry of Law and Justice on the plea.
The PIL filed by two students of the Gujarat National Law University, Gandhinagar, challenged the 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. These provisions provide the statutory scheme for the restitution of conjugal rights.
The PIL filed by Ojaswa Pathak and Mayank Gupta said under the legal system in India, a spouse is “entitled to a decree directing the other spouse to cohabit and take part in sexual intercourse. He/she is also entitled to coercive measures in the form of attachment of property in case the spouse wilfully disobeys the decree of restitution.”
The petitioners submitted that the “legislative package” providing for the restitution of conjugal rights is “unconstitutional” and against the fundamental rights.
A two-judge bench in 1984 had upheld these provisions “as an aid to the prevention of break-up of marriage”.
The plea said that the personal autonomy and dignity that are guaranteed under the Constitution cannot be sacrificed at the altar of family life.
“The Constitution guarantees to every individual the right to be left alone – even within the framework of a family. Any provision which forces an individual to have sexual relations or even cohabit a home without her will is violative of the right to privacy, individual autonomy and dignity that are guaranteed by the Constitution,” the plea added.
It added that the “society is changing into one where the private interest of sexual autonomy, dignity and happiness of an individual is put before concerns like societal morality or family life. Thus, there exists no compelling interest for the State to interfere in matters related to conjugal rights.” (ANI)