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.
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
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.
The petitioners have further argued that though
the provisions are gender neutral, they disproportionally affect women as in
practice mostly men use the provision.
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.
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.”