Marriage Act, 1955;  Sec. 22 of the Special Marriage Act, 1954, etc. This right enables a spouse to approach the local district court if the other spouse has “withdrawn” from the marriage without a “reasonable cause” thereby empowering the court to order that other spouse to return to the matrimonial home. Moreover, as per Order XXI Rule 32 of the Code of Civil Procedure, 1908, the court has power to attach the property of that spouse on non-compliance with its order.

Over the jurisprudential journey of this concept evident from different judicial pronouncements, it can be seen that this concept has been dealt differently by different courts.  The debate gets dichotomous because of the two contentions, one of which advocates the “sanctity of marriage” and the other advocates the “privacy and dignity of women.”

The debate can be traced as early as in 1983 in the judgement of T. Sareetha vs. Venkata Subbaiah wherein the Andhra Pradesh High Court struck down section 9 of HMA as unconstitutional as the same violates right to privacy. However, later the Delhi High Court via the judgement of Harmander Kaur vs. Harvinder Singh Choudhry chided the decision of the Andhra Pradesh High Court and this decision of Delhi High Court was later affirmed by the Supreme Court in the case of Saroj Rani vs. Sadarshan Kumar Chadha. Hence, the current position, sadly, is that the right to privacy is not seen as extending to home affairs and marital relationships inadvertently calling for state intervention.

Given that the Indian society has now witnessed much celebrated judgements of K.S. Puttaswamy vs. Union of India and Joseph Shine vs. Union of India which not only have established right to privacy as a fundamental right but also highlighted that the right to bodily autonomy is the basis of right to privacy. Additionally, even the Law Commission of India in its 2018 Consultation Paper on Reform of Family law has recommended that section 9 of HMA and section 22 of SMA be deleted.

In 2019, a PIL had been filed in the Supreme Court titled “Ojaswa Pathak vs. Union of India” which has challenged the constitutionality of the legal framework governing the law on restitution of conjugal rights in India. The matter is yet pending before the Supreme Court of India.

It has been a gradual yet significant understanding globally that law should not enter and intervene into the family matters and thereby respect the individual autonomy of every individual. Countries like UK, Australia, Ireland, South Africa, etc. have already abolished the right of restitution of conjugal rights as the same is a direct mockery of right to privacy. It is high time that we too understand the inhumane consequences of laws like restitution of conjugal right and take a big step towards individual autonomy thereby ensuring right to privacy to individuals pre and post marriage.

REFERENCES

·         The Hindu Marriage Act, 1955.

·         The Special Marriage Act, 1954.

·         Code of Civil Procedure, 1908.

·         Law Commission of India Report, 2018.

·         T. Sareetha v T. Venkata Subbaih, AIR 1983 AP 356.

·         Harmander Kaur v Harvinder Singh Choudhry, AIR 1984 Delhi 66.

·         Saroj Rani v Sudarshan Kumar Chadha, AIR 1984 SC 1562.

·         Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. (2017) 10 SCC 1.

·         Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

·         Ojaswa Pathak v. Union of India W.P.(C) No. 250/2019 PIL-W.

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