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Conjugal Rights

Published: 31st Jan, 2022

Context

A petition questioning a law that forces a woman to return to her husband and denies her sexual autonomy has been pending in the Supreme Court without a hearing.

About

What are conjugal rights?

In India, marriage is administered by Personal laws which administer the terms like divorce, maintenance, custody and restitution of conjugal rights.

  • Conjugal rights are rights created by marriage, i.e. right of the husband or the wife to the society of the other spouse.
  • The term Conjugal Rights could be placed against any of the spouses guilty of staying away from the other party without a proper reason.
  • If the suit succeeds then the couple would be needed to stay together.

Provisions dealing with Conjugal rights

  • Section 9 of the Hindu Marriage Act, 1955, which deals with restitution of conjugal rights,
  • This section of the Act recognises one aspect of conjugal rights — the right to consortium and protects it by allowing a spouse to move court to enforce the right.
  • The law recognises these rights— both in personal laws dealing with marriage, divorce etc, and in criminal law requiring payment of maintenance and alimony to a spouse.
  • At present, the concept of restitution of conjugal rights is codified in Hindu personal law.
  • Similar provisions exist in Muslim personal law as well as the Divorce Act, 1869, which governs Christian family law.

Origin of such rights

  • Restitution of conjugal rights, a medieval ecclesiastical law from England owes its survival largely to the fact that marital rape is not recognised as crime.
  • Incidentally, in 1970, the United Kingdom repealed the law on restitution of conjugal rights.

How this provision disturbs the constitutional rights?

This is a highly debatable subject. This right has also been misused many times, disturbing the:

  • Right to Life
  • Right to Privacy
  • Right to Equality

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