SC to hear plea challenging the constitutional validity of Hindu Marriage Act

A three judge bench of the Supreme Court will hear a petition challenging the constitutional validity of various legal provisions permitting the restitution of conjugal rights, on the grounds that it places a "disproportionate burden" on the woman.

A bench of Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna on Tuesday referred, to a three judge bench, the petition by two students of Gujarat National Law University challenging the provisions in the Hindu Marriage Act, the Special Marriage Act and in the Code of Civil Procedure providing for the restitution of conjugal rights.

The petitioners - students Ojaswa Pathak and Mayank Gupta - have contended that the "legislative package" providing for these rights is "unconstitutional" as that while the legal framework is "facially neutral", it places "disproportionate burden on the woman and thus is violation of Article 14 and 15(1) of the Constitution.

Senior counsel Sanjay Hegde appeared for the students, who sought that Section 9 of the Hindu Marriage Act, Section 22 of the Special Marriage Act and Order XXI Rule 32 and 33 of the Code of Civil Procedure - all which provide a statutory scheme for the restitution of conjugal rights - be struck down for being unconstitutional.

These provisions are being challenged in light of the top court's judgments on right to privacy, adultery, and decriminalisation of the Indian Penal Code's Section 377.

"The legal framework is violative of the rights to privacy, individual autonomy and dignity of individuals (both men and women) which are guaranteed under Article 21 of the Constitution," Pathak and Gupta contended.

Under the legal scheme in India, a spouse is entitled to a decree directing the other spouse to cohabit and take part in sexual intercourse. Both spouses are also entitled to coercive measures in the form of attachment of property in case the other spouse wilfully disobeys the decree of restitution.

The petitioners have assailed the apex court's 1994 judgment that had upheld Section 9 of the Hindu Marriage Act.

Section 9 reads "When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly."

Section 22 of the Special Marriage Act has a similar provision, while the Code of Civil Procedure's Order XXI, on execution of decrees and order, has Rules 32 (decree for specific performance for restitution of conjugal rights or for an injunction) and 33 (discretion of Court in executing decrees for restitution of conjugal rights).