The Delhi High Court on Wednesday sought the response of the Centre on a plea seeking to declare the sections relating to the restitution of conjugal rights in various Acts as unconstitutional in the wake of the apex court’s recent Right to Privacy ruling. A bench comprising Acting Chief Justice Gita Mittal and Justice C Hari Shankar issued notice to the Union Government and asked it to file its reply by December 8.
“It is crystal clear that state cannot force a wife or a husband when to consent for sex/cohabitation,” the plea filed by Sanjjiv K Kumaar said, adding that the provisions “amount to state interference with a woman’s private decision whether or not to engage in sexual activity”.
The petition sought a direction to the Centre to declare section 9 of the Hindu Marriage Act, section 22 of the Special Marriage Act, Order 21 Rule 33 of CPC and provisions of Section 13 of Hindu Marriage Act as null, void and unconstitutional.
These provisions come into play when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other. The aggrieved party then can apply to the district court for restitution of conjugal rights or the right to stay together.
“As per the Indian Constitution, these provisions violate heart, soul and core of the Right to Privacy ruling of the Supreme Court,” the plea said. A nine-judge constitution bench had on August 24 declared that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
“The state cannot ask why a man or woman are not having sexual relations or since how long they haven’t cohabited or ask or enquire about their consent or their view on same,” Kkumaar said in his plea.