Restitution of conjugal rights and international family law: A ‘remedy’ for disaster?

Indian statutory law authorizes the courts to issue a decree of restitution of conjugal rights ordering estranged couples to live together. Such decrees may be enforced by coercive measures such as attachment of property or imprisonment.

The relevant provisions concerning this decree are Section 9 of the Hindu Marriage Act of India and Section 22 of the Special Marriage Act.

This sort of court-mandated restitution is grossly violative of a person’s right to privacy, freedom to make sexual choices, and personal liberty. These provisions reek of a long-gone Victorian era; England abolished this provision more than half a century ago.

Although seemingly gender-neutral, this provision is particularly discriminatory against women and has been severely criticized for reducing a married woman’s status to mere ‘chattel’. This so-called legal remedy serves as a deterrent for wives to take employment opportunities away from their marital homes. Husbands misuse this remedy to avoid claims of spousal maintenance against them. Lastly, by forcing a woman to join her husband in his home, the courts, in some cases, may leave her more susceptible to domestic violence and marital rape.

Efforts have long been made to invalidate these provision, on the ground of its alleged violation of women’s rights. They have been challenged more than once but we are yet to see a determinative outcome. In T Sareetha v. T Venkata Subbaiah, AIR 1983 AP 356, the Andhra Pradesh High Court noted that Section 9 of the Hindu Marriage Act was an “engine of oppression to be operated by the husband for the benefit of the husband against the wife” and that it offends the right to privacy and bodily integrity granted under Article 21 of the Indian Constitution. The Court also noted that it deprives a woman of her reproductive choices.

However, the Delhi High Court dissented from this opinion in the case of Harvinder Kaur v. Harmander Singh Choudhry. Additionally, the Supreme Court in Saroj Rani v. Sudershan Kumar further said that a decree for restitution of conjugal rights offers the couple an opportunity to resolve their issues amicably. It serves a “social purpose” by preventing the break-up of the marriage, it was held.

A case is currently pending before the Supreme Court of India to declare this provision unconstitutional. In 2019, the apex court agreed to hear the pleas against this provision and there is a distinct possibility that it will declare this provision unconstitutional.

Misuse of the provision in International divorces

Misuse of the ‘remedy’ of restitution of conjugal rights is rampant in international family law matters. In cases where one spouse is in India and the other is in a foreign country, this provision serves to harass the spouse who has left the country. Often, the spouse in India will proactively file for divorce in a foreign country. Then, merely to harass the other spouse (and to gain the Indian court’s sympathy), he will also file for restitution of conjugal rights before a court in India. Such measures are counter-productive and make a complete mockery of the judicial process of seeking a divorce.

In Sonal Aashish Madhapariya v. Aashish Harjibhai Madhapariya, the Gujarat High Court reversed a family court’s order directing the wife to return to India from London and fulfil her marital duties.

The couple, in this case, got married in India in 2009. Shortly after that, the wife moved to the UK. The husband joined her for some time but returned to India owing to marital discord. In 2019, the husband filed for a decree of restitution of conjugal rights in India and received a favourable order from the family court under Section 9 of the Hindu Marriage Act, directing the wife to return to India. When the wife did not do so, the husband filed for divorce in the UK in 2020. Simultaneously, the wife appealed against the family court’s order, and her appeal was so granted because the Gujarat High Court found the family court’s order to be without any basis.

The Court said that a spouse cannot file for a divorce on the one hand and also ask for restitution of conjugal rights on the other.

The post-colonial Indian mindset has undergone a sea change in the last few decades, but this does not seem to reflect in our legislation. An outdated concept of the "sanctity" of marriage should not take precedence over an individual's rights and freedoms, and it is time for the Indian legal system to adapt and evolve with the changing times.

Stutee Nag is a dual-qualified attorney, licensed to practice law in the courts of India and the State of New York. Her primary practice area is international family law, particularly international child custody and divorce matters.