The Central Government has opposed the plea before the Supreme Court challenging the Constitutional validity of provisions relating to restitution of conjugal rights under the Hindu Marriage Act and Special Marriage Act [Ojaswa Pathak vs Union of India].
In an affidavit filed before the top court, the government submitted that voluntary sexual intercourse is an integral part of marriage and that restitution of conjugal rights provision aims at preserving the institution of marriage.
“Matrimony essentially entails a voluntary expression of spouses to cohabit and have a home and family together. Voluntary sexual intercourse in integral part of the marriage,” the affidavit said.
Thus, the petitioners have an incorrect notion that institution of marriage is only a private institution since marriage also entails numerous social and public aspects, the affidavit said.
The reply was filed on a petition filed by two law students from Gujarat National Law University (GNLU) assailing the judgment of the Court in the case of Saroj Rani v. Sudarshan Kumar Chadha.
In this judgment, the Supreme Court had upheld the validity of Section 9 of the Hindu Marriage Act relating to the restitution of Conjugal Rights.
Section 9 states:
“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.”
A similar provision can be found in Section 22 of the Special Marriage Act.
The petitioners prayed that Section 9 of the Hindu Marriage Act and Section 22 of the Special Marriage Act be struck down. Additionally, the enforcement of restitution of conjugal rights as provided for under Order XXI Rule 32 and 33 of the Code of Civil Procedure was also sought to be struck down.
The affidavit filed by the Law Ministry stated that the argument that Section 9 is a coercive measure on the intimate personal choice, is misconceived and fallacious.
The Central government underlined that Section 9 of the Hindu marriage Act 1955 is only a codification of the pre existing law and restitution of conjugal rights enables “both sexes to enforce the marital rights within a reasonable framework and a no way does it create an unequal playing field.”
Further, the Centre emphasised that the primary aim of restitution of conjugal rights is to bring about cohabitation between estranged parties to the marriage so that they can live together in the matrimonial home in amity and that “intention of restitution of conjugal rights is to preserve the institution of marriage and not merely sexual intercourse.”
On the argument that restitution of conjugal rights violates the right to privacy, the government affidavit stated that while declaring right to privacy as a fundamental right under Article 21 of the constitution, the Supreme Court has not been oblivious of the fact that the “enforcement of such a right has to be on a case to case basis and that the said right is not absolute but its subject to reasonable restrictions by the state in order to protect legitimate state interest or public interest.”
The case will be heard by the Supreme Court on September 6, Tuesday.
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