HINDU PERSONAL LAWS

The Supreme Court (SC) is going to hear a fresh challenge to the provision allowing restitution (recovery) of conjugal rights under Hindu personal laws (Hindu Marriage act 1955).

Important points:

  • Conjugal rights are rights created by marriage, i.e. right of the husband or the wife to the society of the other spouse.
  • The law recognises these rights— both in personal laws dealing with marriage, divorce etc, and in criminal law requiring payment of maintenance and alimony to a spouse.
  • Section 9 of the Hindu Marriage Act recognises one aspect of conjugal rights — the right to consortium and protects it by allowing a spouse to move court to enforce the right.
  • The concept of restitution of conjugal rights is codified in Hindu personal law now, but has colonial origins.
  • Originating from Jewish law, the provision for restitution of conjugal rights reached India and other common law countries through British Rule.
  • The British law treated wives as their husband’s personal possession hence they were not allowed to leave their husbands.
  • Similar provisions exist in Muslim personal law as well as the Divorce Act, 1869, which governs Christian family law.

Incidentally, in 1970, the U.K repealed the law on restitution of conjugal rights.

Challenged Provision:

  • Section 9 of the Hindu Marriage Act, 1955, which deals with restitution of conjugal rights, reads:
  • When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court.
  • For restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such a petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Way Forward

  • While we talk about gender equality and the gender-neutral quality of the law, women are still at a disadvantage in Indian society and this provision capitalises on it.
  • Dowry deaths are a plague on society and women being emotionally and mentally manipulated and tortured for dowry are aplenty.
  • When these wives, tired and broken by cruelty, leave the husband’s house, a decree of restitution of conjugal rights is a noose around their necks.

SOURCE: THE HINDU,THE ECONOMIC TIMES ,MINT

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