The Supreme Court will look into a plea challenging provisions in the law that empower courts to pass an order for restitution of conjugal rights of estranged couples. The petitioners have claimed that the provisions are “steeped in a patriarchal gender stereotype” and violate the rights to privacy and individual autonomy.
“List the matter next week before a three-judge bench,” a bench of Chief Justice of India Ranjan Gogoi and Justice Sanjiv Khanna ordered when the PIL, filed by two students of the Gujarat National Law University, Gandhinagar, came up before it.
Their petition has challenged the validity of Section 9 of the Hindu Marriage Act, 1955; Section 22 of the Special Marriage Act, 1954; and Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908, which provide the statutory scheme for the Restitution of Conjugal Rights.
Initially the bench told senior advocate Sanjay Hegde, who appeared for the petitioners Mayank Gupta and Ojaswa Pathak, that the question had already been settled by the apex court in 1984 when it approved a Delhi High Court order upholding the provisions.
Hegde submitted that it was much before the privacy judgment, and that it should be looked into afresh.
The petition contended that “society is changing into one where the private interest of sexual autonomy, dignity and happiness of an individual is put before concerns like societal morality or family life. Thus, there exists no compelling interest for the state to interfere in matters related to conjugal rights”.
Though the “legislative package” providing for the Restitution of Conjugal Rights is “facially neutral” (husband or wife could move court for an order of restitution of conjugal rights), “it however places a disproportionate burden on women and is therefore violative of Articles 14 and 15(1) of the Constitution”, they claimed.