‘Can a person be forced to cohabit with estranged spouse?’

Satya Prakash

Tribune News Service

New Delhi, July 8

Can a person be forced to cohabit with the estranged spouse against his/her will?

Faced with this peculiar legal question bordering on fundamental right to privacy and sexual autonomy, the Supreme Court on Thursday asked the Centre to spell out in 10 days its stand on a petition challenging the law on restitution of conjugal rights under the Hindu Marriage Act and the Special Marriage Act.

Petitioners Ojaswa Pathak and Mayank Gupta—students of Gujarat National Law University, Gujarat—have challenged the validity of Section 9 of the Hindu Marriage Act (HMA), Section 22 of the Special Marriage Act (SMA) and certain provisions of the Code of Civil Procedure (CPC) that empower courts to pass a decree of restitution of conjugal rights at the instance of an aggrieved spouse.

Under these provisions, courts can ask estranged spouses to “cohabit” and “take part in sexual intercourse” to restore conjugal rights of the aggrieved spouse.

The petitioners contended that after the 2017 verdict of a nine-judge Constitution Bench declaring right to privacy as fundamental right provisions on restitution of conjugal rights have become unconstitutional as they force unwilling spouses, mostly women, to cohabit with their estranged life partners.

Terming the questions raised in the petition challenging the constitutional validity of the law on restitution of conjugal rights as “important”, the Bench posted the matter for further hearing on July 22 after Attorney General KK Venugopal said he needed time to file written submissions.

On behalf of petitioners, senior advocate Indira Jaising submitted the matter related to a pure question of law regarding the validity of Section 9 of HMA and other similar provisions and that the court should give a shorter date.

The top court had in March 2019 referred to a three-judge bench a petition challenging the validity of provisions in the matrimonial laws empowering courts to ask estranged spouses to “cohabit”.

“Courts in India have understood ‘Conjugal rights’ to have two key ingredients: cohabitation and sexual intercourse. Under the legal scheme in India, a spouse is entitled to a decree directing his other spouse to cohabit and take part in sexual intercourse. He or she is also entitled to coercive measures in the form of attachment of property in case the spouses wilfully disobey the decree of restitution,” the petitioners said.