Restitution of Conjugal Rights: A Quest for Jurisprudence Behind the Law
| Date | 01 September 2016 |
| DOI | 10.1177/2277401720160105 |
| Author | Debasis Poddar |
| Published date | 01 September 2016 |
| Subject Matter | Article |
RESTITUTION OF CONJUGAL RIGHTS: A QUEST FOR
JURISPRUDENCE BEHIND THE LAW
Debasis Poddar*
Conjugal rift is something in commonplace worldwide while
remedy thereof appears dierent in dierent nooks and corners of
the world. Even in India, due to its multicultural settings, endless
means and methods are in practice in the given context of time
and space. This eort is meant to explore a kind of its own- decree
for restitution of conjugal rights- a legal remedy available for a
deserted spouse governed by the Hindu Marriage Act, 1955.
Within the institution of marriage, for the orthodox Hindu society
of India, conjugal rights and restitution thereof and that also by a
decree to get issued by court of law attract attention of one and all
in public sphere way back since the beginning of statutory regime
under the Act, 1955, or even before; since parliamentary debates
on the Hindu Marriage Bill, 1955. Also, during last six decades
down the line of matrimonial governance, the impugned provision-
Section 9 of the Act- underwent critical crossroads, once had close
shave from getting axed on the ground of unconstitutionality, yet
survived and thereby enriched the so-called banyan tree of relevant
case laws widespread across the country. With the passage of time,
the apex court has reiterated rational jurisprudence of its own
despite its twofold approach to restitution; noninterventionist and
interventionist, but both taken to safeguard the family as a primary
institution for orthodox Hindu society.
Besides the judiciary, however, there are other players, e.g. family
members of the deserted on one side and those of the deserter on
the other with subtle vested interests of their own, stakeholders of
the patriarchy on one side and those of the feminist movement on
the other, and so on. This eort is meant to explore the elements of
chorus from within cacophony among all of them, decipher what
is likely to serve the best interest for both and thereby fortify the
hitherto fragile castle of family relations in time ahead.
“To catch a husband is an art; to hold him is a job”.
Simone de Beauvoir.1
* Assistant Professor of Law, National University of Study and Research in Law, Ranchi, Jharkhand.
1 A popular English translation from her magnum opus: Simone de Beauvoir, The Second Sex (1949).
In so called authentic translation from the French, her original language, statement may be read
thus, “… keeping a husband is work; keeping a lover is a kind of vocation”. Simone de Beauvoir,
The Second Sex (Constance Borde and Sheila Malovany-Chevallier (trs), Vintage Books 2009) 795.
Available at:
http://uberty.org/wp-content/uploads/2015/09/1949_simone-de-beauvoir-the-second-sex.pdf
accessed on January 21, 2017.
94 Journal of National Law University Delhi VOL 4(1)
I. Introduction
The provision for restitution of conjugal rights under Section 9 of the Hindu
Marriage Act, 1955 (hereafter the Act), along with the impugned jurisprudence
involved therein, constitute the research foci of this eort. Since the beginning of
this statutory regime, the contentious provision initiated poles apart polemics to
leave ideological quarters at loggerheads. While traditional jurists nd the same
imperative for the maintenance of marriage as social institution and thereby
uphold the purpose of statute, stakeholders of the feminist movement nd the same
otherwise. To them, restoration- if enforced by the court- amounts to the violation
of personal liberty (and, in turn, of life) of one spouse unwilling to recommence
conjugal life with another for whatever reasoning there may be. Here there is a
comedy of error to lead an otherwise critical social fact to tragedy. While the former
insist on conjugal rights of willing spouse to consummate the wedlock partner,
institution of marriage is indeed meant for their conjugal rights, the latter insist on
rights of unwilling spouse not to get consumed like inanimate product since (s)he
is somehow stuck, yet not at all agreed to get subjected to the conjugal lust of the
spouse due to such wedlock. In the following paragraphs, the author is scheduled
to take a stocktaking of both along with comparative advantage of one over the
other. The matter, however, does not end there. Also, there is a quest to decipher the
intention of ancient Indian lawmakers available in classical scriptures of the Hindu
jurisprudence and thereby unfold wisdom underlying in the regional antiquity.
Feminist position in the given statutory regime deserves attention. Since the
beginning of the Hindu Marriage Act, 1955, the impugned provision appears irritant
for women out of their traditional contention that- due to brutal physical strength by
default-male spouse ought to overpower his spouse and thereby reduce her to fall
prey to lustful bed in matrimonial setting. The provision, therefore, facilitates male
spouse to settle score over female counterpart; something otherwise impossible to
settle in his favour. Thus, dierence of mind turns violent advance against the person
of female spouse to oend her personal liberty under Article 21 of the Constitution.
In course of initial decades, judicial pronouncements went in favour of traditional
mindset toward consummation of marriage and thereby compelled female spouse
to get back to her matrimonial home (read bed) that resembles graveyard for her.
Consequently, the trend of dowry death emerged as unholy trend for the court to
grapple with and the same prompted the court take U-turn to this end. Thus, the court
turned cynical to plea of male spouse to send female spouse back to her matrimonial
home (read bed). There lies specic reasoning for repeated reading of home as bed.
At bottom, this eort is meant to assert negation of home as euphemism of bed
alone. With reference to ancient Indian antiquity, eort is on to characterise conjugal
life beyond sensual partnership.
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