Restoration of conjugal rights- sc recent decisions
Querist :
Anonymous
(Querist) 19 June 2021
This query is : Resolved
Could you help me find any relavent precedence held by the Honorable SC of India?
T. Kalaiselvan, Advocate
(Expert) 19 June 2021
Andhra Pradesh High Court in 1983 in the case of T Sareetha v T Venkata Subbaiah (1983), where the famous South Indian actress Saritha sought to defend herself against a suit for RCR from her actor husband, it was held that:
In a ruling reminiscent of Justice Pinhey’s judgment in Rukhmabai’s case in 1885, Justice Choudary reiterated the foreign nature of suits for restitution of conjugal rights before declaring Sec 9 of the HMA in violation of the Indian constitution. Specifically, Art 21 or the right to privacy wherein the court took into account the fact that a wife forced to live with her husband may have to endure ‘humiliating sexual molestation’ and/or be forced to give birth to children she may not wish to have. The court also found that to treat a man and a woman who are inherently unequal in Indian society as equal in front of the law was a violation of Art 14 or the right to equality.
constitutionality of sec 9 was upheld by the Delhi High Court in Harvinder Kaur v. Harmander Singh Choudhry in 1984, where Justice Rohatgi criticised any attempt to hold personal laws accountable to the constitution: ‘Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14- have anyplace.’ This interpretation of Sec 9 was upheld by the Indian Supreme Court a few months later in Saroj Rani vs Sudarshan Kumar Chadha (1984).
It is against this backdrop, and in light of the recent Indian Supreme Court decisions on the right to privacy in Puttaswamy v Union of India (2017) and Navtej Singh Johar v Union of India (2018) where the latter finally overturned another regressive colonial law – the criminalisation of homosexuality, that two young students in India have sought to challenge the existing validity of restitution of conjugal rights under the HMA 1955, the Special Marriage Act 1954 and the Code of Civil Procedure 1908.
