Restitution Of Conjugal Rights Does Not Violate Right To Privacy; Continuation Of Marriage Legitimate State Interest : Centre Tells Supreme Court

The Central Government has today filed a Counter Affidavit opposing a plea filed in the Supreme Court challenging the constitutional validity of the Section 9 of the Hindu Marriage Act, Section 22 of the Special Marriage Act and Order 21 Rule 22 and 23 of the Code of Civil Procedure which are provisions relating to the restitution of Conjugal Rights.The Central Government stated that there is a "legitimate state interest" in ensuring the continuation of marriage and the provision has a reasonable nexus with the objective of binding invididuals to their marital ocmmitments. Marriage creates an entire ecosystem of statutory laws. It is an institution which converges a delicate balance of rights, obligations, duties and conditions between a man and a woman in order to regulate the relationship as husband and wife.The affidavit filed through the Joint Secretary of the Ministry of Law and Justice stated that the notion entertained by the petitioner that marriage is only a private institution is wrong. It stated that, "This understanding is incorrect as the marriage in any societal setup also entails numerous social and public aspects. It is submitted that regulation of the said institution of marriage, the codification of certain rights and obligations that are created by virtue of such institutions being deeply rooted in the country/society, is the norm across jurisdictions." The Government also stated that the challenge based on the judgment in K. S. Puttaswamy vs Union of India - which declared right to privacy a fundamental right- has no merit as the same deals with privacy rights of individual against the State and the State has no role to play in the implementation or operationalisation of the conjugal rights apart from statutorily recognising the rights.The Counter Affidavit filed by the Ministry of Law and Justice submitted that, "the suggestions of the petitioners that this positive, practical and innocuous matrimonial remedy is a coercive measure on the 'intimate personal choice' to cohabit and take part in sexual intercourse with another, of a spouse, is wholly misconceived, fallacious and utopian."It was also submitted in the affidavit that the constitutionality of the restitution of conjugal rights has been already examined by the Supreme Court in Smt. Saroj Rani vs Sudarshan Kumar Chadha and was upheld. It was found in the decision that the remedy of restitution of conjugal rights is inherent to the very institution of marriage itself and Section 9 of the Hindu Marriage Act is only a codification of the pre existing law. The affidavit stated that, "The Petitioner herein is interpreting the Privacy Judgment completely dehors the context to wrongly contend that a right which is intrinsic to the very institution of marriage has been taken away by virtue of the said Privacy Judgment"The Counter also submitted that the submission of the Petitioners regarding the facial neutrality continue the pattern of being misapplied and meritless. The remedy is "gender neutral in constitution and gender neutral in its operation". The counter filed by the Central Government left the requirement of "without reasonable cause" open to be determined by the Court as, "it has been a settled law that what constitutes 'reasonable cause' has been interpreted liberally, thereby enabling enough freedom and leeway to either spouse on judicially recognizable grounds. It is submitted that 'reasonable cause' is a far lower threshold than the requirements of divorce thereby ensuring that possibility of reconciliation is not escaped altogether"The Government in its counter emphasised that, "the statutory mechanism provided in the various enactments for the restitution of conjugal rights is aimed at bringing in cohabitation between estranged parties so that they can live together in matrimonial home in amity. The intention of restitution of conjugal rights is to preserve the institution of marriage, allowing the spouses accrss to a relatively soft legal remedy by which they can iron out differences arising out of the normal wear and tear of the matrimonial life with judicial intervention and is aimed towards cohabitation and consortium and not merely sexual intercourse."The matter is listed before a 3-judge bench led by Justice Indira Banerjee for hearing tomorrow.Case Title : Ojaswa Pathak and another versus Union of India and others, WP(c) 250/2019

Restitution Of Conjugal Rights Does Not Violate Right To Privacy; Continuation Of Marriage Legitimate State Interest : Centre Tells Supreme Court

Deepankar Malviya

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