india

Updated: Mar 06, 2019 07:34 IST

The Supreme Court on Tuesday agreed to revisit its 35-year-old judgment empowering courts to ask estranged couples to “cohabit” and “take part in sexual intercourse” in the larger interest of preventing a breakdown in marriage.

A bench led by Chief Justice of India Ranjan Gogoi referred the case to a three-judge bench after taking note of a petition filed by two students from Gujarat National Law University challenging the constitutionality of the provisions of the Hindu Marriage Act, 1955, and Section 22 of the Special Marriage Act.

According to the petition, a man or woman cannot force a spouse to cohabit with him or her or take part in sexual intercourse. The provisions are violative of the rights to privacy, individual autonomy and dignity of individuals guaranteed under Article 21 (protection of life and personal liberty) of the Constitution, it said.

“The remedy of restitution of conjugal rights was not recognized by any of the personal law systems of India. The same has its origins in feudal English Law, which at that time considered a wife to be the chattel of the husband...,” the plea said.

It is steeped in a patriarchal gender stereotype and is violative of Article 15(1) (prohibition of discrimination on the ground of gender etc) of the Constitution, the petition added. The legal framework is “facially neutral” as it places a “disproportionate burden on women” and negates the fundamental right to live with dignity.

Disregarding the 1984 Supreme Court verdict, the petitioners said personal autonomy and dignity guaranteed under the Constitution cannot be sacrificed at the altar of family life.

“... the petitioners submit that 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 in a home without her will is violative of the right to privacy, individual autonomy and dignity that are guaranteed by the Constitution,” the petition said. In a society that is changing, sexual autonomy, dignity and happiness of an individual are put before concerns like societal morality or family life. “..there exists no compelling interest for the state to interfere in matters related to conjugal rights,” the petition said.

The petition questioned the rules under the Code of Civil Procedure that entitles a spouse to take coercive measures like attachment of property in case an estranged partner disobeyed the decree of restitution.

Such a law violates recent Supreme Court constitution bench verdicts on privacy, including the one on homosexuality, the petition said. Since the 1984 verdict was by a two-judge bench, CJI Gogoi indicated a larger bench of three judges would hear the petition.

The law was struck down as unconstitutional by the Andhra Pradesh high court in 1983. But a year later, the Delhi high court upheld the provisions. The same year, the top court declared it valid and called the scheme an “aid to the prevention of break-up of marriage.”