‘Can one spouse be ordered to cohabit with the other?’

Satya Prakash

Tribune News Service

New Delhi, January 20

Does ordering one spouse to join the other against one’s free will amount to violation of one’s right to privacy — declared a fundamental right by the Supreme Court in 2017?

A three-judge Bench headed by Justice Rohinton F Nariman on Tuesday sought Attorney General KK Venugopal’s assistance to decide the tricky legal question.

The top court has already issued notice to the Centre on a PIL filed by Ojaswa Pathak and Mayank Gupta — students of Gujarat National Law University, Gandhinagar – who have challenged provisions on “restitution of conjugal rights” which include cohabitation and sexual intercourse.

Under the law on restitution of conjugal rights, a spouse is entitled to a decree directing the other to join him/her in their matrimonial home and resume cohabitation. The complaining spouse can resort to coercive measures such as attachment of property, if the other spouse willfully disobeys a court order for restitution of conjugal rights.

The petitioners have challenged Section 9 of the Hindu Marriage Act and Section 22 of the Special Marriage Act which empower courts to direct the spouse who has withdrawn from the society of the other without any reasonable excuse to resume conjugal relations. These laws treated women as “chattel” and were violative of fundamental rights, including the right to privacy, they contended.