Conjugal rights make sure couples cohabit or divorce: Centre tells SC

Updated on Sep 06, 2022 10:27 AM IST

Asserting that continuation of the institution of marriage or at least making an honest attempt at it is a legitimate state interest, the government justified the law, adding it is the bounden constitutional duty of the legislature to protect the institution of marriage and family.

Centre made the statement while defending the law that authorises a court to direct a person to return to her or his spouse again. (AP File Photo) PREMIUM
Centre made the statement while defending the law that authorises a court to direct a person to return to her or his spouse again. (AP File Photo)
By, New Delhi

Restitution of conjugal rights is a legal obligation that binds a couple to the marriage which can be cut off only through a divorce, the Union government told the Supreme Court on Monday while defending the law that authorises a court to direct a person to return to her or his spouse again.

Submitting its affidavit, the Centre maintained that the pertinent provision in the Hindu Marriage Act and the Special Marriage Act on restitution of conjugal rights makes it clear that once two people have solemnised a marriage, they must either fulfil their commitments of the marriage or seek a divorce.

“In other words, no party to a marriage can be allowed to unreasonably withdraw from the society of his/her spouse with neither an intention of seeking a divorce nor cohabitating with the spouse. Thus, the overall scheme governing restitution of conjugal rights contains in itself proportionality as well as a reasonable nexus to the objective of binding individuals to their martial commitments,” said the affidavit, filed through the Union law ministry.

Asserting that continuation of the institution of marriage or at least making an honest attempt at it is a legitimate state interest, the government justified the law, adding it is the bounden constitutional duty of the legislature to protect the institution of marriage and family.

“The intention of restitution of conjugal rights is to preserve the institution of marriage and is aimed towards cohabitation and not merely sexual intercourse... remedy for restitution of conjugal rights is aimed at cohabitation between estranged parties and it serves a social purpose as an aid to the prevention of break-up of marriage,” it added.

Opposing a petition that has questioned the validity of the restitution of conjugal rights on the ground of being violative of personal and sexual autonomy, the Centre maintained that the purpose of such a right can never be to force an individual to a sexual intercourse which is an actionable matrimonial wrong, in addition to being actionable under the Domestic Violence Act and other statutes.

“Matrimony essentially entails a voluntary expression of spouses to cohabit and have a home and family together. Voluntary sexual intercourse is an integral part of marriage. Coercion and abuse, is an anathema to the institution of marriage, whether in physical, mental, sexual, emotional or economic terms and any remedy under the matrimonial laws, particularly this remedy, can never promote or condone such an act,” said the affidavit.

Countering the petitioner’s argument that the restitution of conjugal rights violates the right to privacy, the government replied that the 2017 judgment of the top court on the right to privacy was unequivocal that the privacy right is not absolute but is subject to reasonable restrictions by the State in order to protect legitimate state interest or public interest. “Further, it is submitted that remedy of conjugal rights is in sync with the ecosystem of marriage laws and has enough checks and balances to ensure that the same is just, fair and reasonable in order to not fall foul of Article 21,” said the affidavit. Article 21 entails the right to life and liberty. Pointing out that the State does not seek to violate the privacy of any individual, the Centre submitted that the remedy of restitution of conjugal is gender-neutral and is available to either of the spouses that operate within the marriage.

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