January 13, 2024
INTRODUCTION
The debate regarding the constitutionality of Restitution of Conjugal Rights (“RCR”) has centered around the State’s intervention into the “private sphere” of family and marriage. The State justifies the intervention to protect the institution of marriage, rather than the rights of individuals. This exposes the conflict between decisional, as opposed to, spatial and institutional conceptions of privacy. Decisional privacy prioritizes individual rights while spatial and institutional conceptions insulate the activities within the “private sphere” (which includes social institutions or relations, here, marriage) from State interference, even in case of violation of individual rights. How the Supreme Court, upholding the latter contradicts the post-Puttaswamy jurisprudence has been previously discussed in greater detail by scholars and hence, I do not intend to elaborate further. Rather, I argue that the challenge to the constitutionality of RCR raises a larger socio-legal issue. This becomes pertinent since the Ojaswa Pathak petition challenging RCR’s constitutionality is pending before the Supreme Court.
The concept of conjugal rights i.e., rights of or pertaining to marriage, has so far been construed to include the right to sexual relations. RCR operates on the premise of reinstating such conjugal rights. However, this interpretation of conjugal rights should be reassessed. This reassessment does not advocate for an absence of expectations regarding sexual intercourse among married couples, but rather that such expectations should not be given legal enforcement by reading it as a right to sexual relations.
Accordingly, the current plea to declare RCR unconstitutional provides the Court with an opportunity to democratize the conception of conjugal rights and, by extension, the institution of marriage. The issue of the constitutionality of RCR should not be limited to how this provision discriminates against women and infringes on their constitutional rights to equality and dignity but on how it perpetuates this discrimination. The Court shall have the chance to move beyond the approach that prioritizes individual rights over the sanctity of marriage towards a democratized understanding of conjugal rights and marriage. In this article, I attempt to demonstrate the issues with the current interpretation and what an alternative interpretation could entail.
T. SAREETHA: RIGHT TO HAVE MARITAL INTERCOURSE
The Andhra Pradesh High Court in T. Sareetha held that a decree under S. 9 essentially transfers the choice of having or not having sexual intercourse to the State rather than the individual. This was held to be violative of the decisional privacy of the women and thus, unconstitutional. This settles the issue that the sphere of marriage is not immune from State interference when the rights of individuals are at stake. While the intent of the Court in T. Sareetha is appreciated, this premise relied upon by the Court that conjugal rights connote two ideas, one of those being ‘the right to have marital intercourse’ is itself problematic. While interpreting S. 9, the right to cohabitation was limited to the right to ‘sexual cohabitation.’ However, this interpretation is not supported by the approach adopted by the courts in England, from where the remedy has been borrowed in the first place.
In India, marriage is interpreted to not only give rise to a legitimate expectation of sexual intercourse but includes the right to enforce the expectation as well. This undermines the importance of mutual consent, which is especially concerning given the marital rape exception. It reduces consent to one-sided obedience expected from the wife due to the inherent gender dynamics in a marriage. The impact of this unequal burden is exacerbated by the courts which have held that providing sex is a “duty” of the wife and the denial of the same amounts to “mental cruelty”.
Even if the right to sexual intercourse is included as a part of marriage (which it should not),the Court could still hold the provision unconstitutional based on infringement of the decisional privacy itself. A decree of RCR would nevertheless amount to forcing the respondent to cohabit in a space contrary to their choice, thus, giving the deserted party the right to custody of the respondent. Enforcement of this decree is often accompanied by attachment of property or in case of its violation, imprisonment. Given the power dynamics, a valid link can be drawn between cohabitation and compelled intercourse, without reading in the right to have marital intercourse. This violation of privacy and personal liberty should suffice to strike down the provision, rather than adopting an interpretation of conjugal rights that dilutes the importance of the wife’s consent and can support archaic provisions like the marital rape exception or denial of sex as a ground for divorce.
The subsequent cases like, Harvinder Kaur v. Harmander Singh and Saroj Rani v. Sudarshan Kumar, that dealt with RCR, upheld its constitutionality by differing on what ‘cohabitation’ as an aspect of marriage includes. However, in effect, the interpretation of such conjugal rights was not much different from T. Sareetha. The courts merely couched it in a language that does not prima facie appear discriminatory, failing to consider the institutional discrimination within marriage.
HARVINDER AND SAROJ RANI: ‘INDIVIDUAL’ RIGHTS AND ‘SOCIAL PURPOSE’ OF PREVENTING THE BREAK-UP OF MARRIAGE
In Harvinder, cohabitation was held to mean “living together as husband and wife”, not amounting to a “decree in the marriage bed”. Sexual intercourse was held as one aspect of marriage rather than the ‘summum bonum’ or the highest good. However, the Delhi High Court observed that the refusal to have sexual intercourse may be evidence of the consortium coming to an end. Procreation of children was considered essential for the marriage; marital sex was seen as a “biological necessity”. This conflicts with the recognition of women’s right to reproductive choice under Article 21 and has the effect of interpreting RCR as a remedy that enforces marital sex.
It may be argued that the Court was aware of consent being the essence of marriage as it noted that a decree of RCR does not amount to enforcing sex. However, the judgment failed to consider how inherent power dynamics within a marriage impact the consent, especially of women. For example, the Court acknowledged “the changing ideals of society” yet adjudged the constitutionality based on “Hindu eyes of 1955” [with respect to S.9 of the Hindu Marriage Act, 1955].
The view of companionship in marriage as where “a man and his wife are one person” privileges the preservation of marriage over the rights of individuals in such a marriage. There seems to be no constitutional basis for the observation of “one person (or entity)”due to marriage. Unlike countries like Italy, South Africa, etc. which explicitly accord constitutional recognition to a family, the Indian Constitution does not endorse “family” or “married couple” as a rights-bearing entity. Since the family or spouse in marriage can exercise coercive power over individuals (especially women), the preservation of family and/or marriage cannot be privileged over an individual’s rights. In Saroj Rani as well, the Supreme Court’s reliance on spatial and institutional conceptions of privacy, focusing on the ‘social purpose’ of protecting marriage as an institution rather than decisional privacy is not constitutionally supported.
AN ALTERNATIVE APPROACH
To balance the constitutional commitment to the fundamental right to equality, dignity, and the sanctity accorded to marriage, marriage should be interpreted such that these rights are protected within the institution of marriage, rather than merely being held as superior to its sanctity. The structural changes in the interpretation of marriage can also contribute to moving away from its current heteronormative framework. Such a transformative reading of marriage is supported by the observation in Navtej Singh Johar v. UOI that the Constitution envisages a transformation in the order of relations not just between the state and individuals but also between the individuals.
A transformative reading of marriage would begin by examining the forces that inform marriage, including social institutions like patriarchy. In marriage, patriarchy leads to an unequal gendered division of labor, contributing to economic dependency and power inequality. The gendered division is maintained through social pressures and expectations. Examining patriarchy would involve how marriage (sadly) being the only form of legally recognized union, is one of the ways in which the State structures these social expectations and impacts the lives of people. Once the institutional nature of discrimination within marriage is examined, it would then argue that the social institutions, like patriarchy, have to be interpreted in light of the fundamental rights. This approach of examining the social institutions to remedy centuries of discrimination against women among other marginalized categories was emphasized by the Supreme Court in Sabarimala Temple Entry Case.
The emphasis on equality, dignity, and autonomy would include a shift in focus of marriage from sex and biological creation to companionship, and mutuality in rights and duties by examining the patriarchal values, as the analysis above has intended to demonstrate. A democratized interpretation of marriage intends to make this institution equal while accounting for the vulnerability of parties in a marriage. This could include examining the functional aspects of the marriage, i.e., how the spouses share their responsibility, and depend on each other financially and emotionally. The courts have to be cautious since they have to acknowledge the existence of differences between the spouses while ensuring that these differences do not sanction discrimination. They also have to ensure that the relevant differences are not based on gender stereotypes. For example, consider the earlier challenges to the constitutionality of S. 497 of IPC, where only a man could be held guilty of adultery. The SC upheld it since it exempts women from criminal liability and the State is empowered to make such ‘special provisions’ under A. 15 (3) of the Constitution. However, it failed to consider how the provision was based on a gender stereotype that a woman lacks the sexual agency to seduce and commit adultery.
This leads to the conclusion that judicial intervention becomes essential even within marriage in case of infringement of the rights of either spouse. To further the rights of spouse within the marriage, it is essential to recognize and remedy the discrimination that arises due to the inherent power dynamics. An examination of RCR based on such a transformative reading is likely to further constitutional values like equality in the jurisprudence concerning marriage related issues.
The Author is a second-year law student at NLSIU, Bangalore
Image Credits: The Quint
Constitutional Law Society 
There are limits to privacy in marriage. The institution of marriage evolved over the millennia primarily to facilitate individuals (a woman and a man) to satisfy their sexual needs with each other; to have children, and to have dependable companionship for life. A wife or a husband can not normally have the right to deny sex to the other partner, while continuing in the marital relationship. In other words, they can not have the right to refuse sex completely, and also continue with the marriage.
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