Can estranged couples be forced to cohabit, asks PIL

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  1. The Supreme Court has decided to hear a petition challenging the constitutionality of Section 9 of the Hindu Marriage Act (HMA), 1955, and Section 22 of the Special Marriage Act. These provisions deal with restitution of conjugal rights.
  2. Under these provisions, a spouse, living separately, is entitled to a decree directing the other spouse to cohabit and take part in sexual intercourse. If an unwilling partner refuses to live with his/her spouse, then he/she faces confiscation of property for dishonouring a court’s decree.
  3. The petitioners have argued that these provisions are violative of the rights to privacy, individual autonomy and dignity of individuals guaranteed under Article 21 (Protection of life and personal liberty) of the Indian constitution.
  4. The petitioners have further argued that though the provisions are gender neutral, they disproportionally affect women as in practice mostly men use the provision.
  5. The constitutional validity of section 9 has been a contentious issue. In T Sareetha vs. Venkata Subbaiah case (1983), the Andhra Pradesh High court had struck down Section 9 of HMA, declaring it to be violative of Article 14 (Equality before Law) and Article 21 of the Constitution. However, Delhi High Court in Harvinder Kaur vs. Harmander Singh case (1984) upheld the provision.
  6.  In 1984, the Supreme Court, in the judgment of Saroj Rani vs. Sudarshan Kumar Chadha declared the provision valid on the grounds that it is an “aid to the prevention of break-up of marriage.”