Centre defends restitution of conjugal rights in SC, says it's a 'practical matrimonial remedy'

The Union government has defended before the Supreme Court legal provisions on restitution of conjugal rights, saying it was aimed at bringing in cohabitation between estranged parties so that they can live together in the matrimonial home in amity.

"The remedy of restitution of conjugal rights, is a positive, useful and practical matrimonial remedy, available to both spouses in equal measure and vigor, which is widely used by estranged couples in an endeavor to find solutions to matrimonial differences and problems, which may not be so grave so as to warrant taking recourse to more serious remedies, that invariably push the already strained marital relationship to a point of no reconciliation," the government said.

The Centre opposed a plea filed to question the constitutional validity of provisions relating to restitution of conjugal rights under the Hindu Marriage Act and Special Marriage Act.

In an affidavit to a petition filed by Ojaswa Pathak and another, the Law Ministry asserted that the provisions are meant to preserve the institution of marriage by a relatively soft legal remedy.

The nature of the institution of marriage is to be properly understood and appreciated before understanding the rationale behind the remedy of conjugal rights, it pointed out.

The plea claimed Section 9 of the Hindu Marriage Act, 1955, Section 22 of the Special Marriage Act, 1954 and order 21 rule 32 and 33 of the Code of Civil Procedure, 1908 are violative of fundamental rights and hence unconstitutional.

Maintaining that as per Hindu Personal Law, especially concerning Hindu Marriage Act, 1955, marriage is not a union, it is a sacrament, the government said, "The intention of restitution of conjugal rights is to preserve the institution of marriage, allowing spouses to a relatively soft legal remedy by which they can iron out differences arising out of the normal wear and tear of matrimonial life with judicial intervention and is aimed towards cohabitation and consortium and not merely sexual intercourse.”

Responding to petitioners' claim that the restitution of conjugal rights violated the right to privacy, the government's response said, “the decision rendered by this court in its privacy judgment had in effect upheld its earlier decision in Saroj Rani and reaffirmed the vires of various provisions for restitution of conjugal rights and had also clarified that the right to privacy is not absolute and is subject to reasonable restrictions by the state in order to protect larger public interest, which in the present case is the institution of marriage and family”.