The Supreme Court on Tuesday agreed to examine a plea for striking down a legal provision for restitution of conjugal rights on the ground of recent judgments recognising of the right to privacy, and individual autonomy as fundamental rights.
A bench of Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna decided to put the petition jointly filed by Ojaswa Pathak and Mayank Gupta, two law students, for consideration before a three-judge bench.
The petitioners, represented by senior advocate Sanjay Hegde, challenged the validity of Section 9 of the Hindu Marriage Act, which was declared valid by the Delhi High Court in 1984 and the Supreme Court in 'Saroj Rani Vs Sudarshan Kumar Chadha in 1984.
“If the wife withdrew from the society of the husband, she would be compelled to join the husband. The provision is steeped into stereotypes of women and their role in a marriage,” their petition stated.
“Article 15 of the Constitution prohibits discrimination on the ground of sex. The scheme of 'restitution of conjugal rights' though facially neutral, is based on patriarchal conception of woman as property and entrenches gender stereotypes,” the plea added.
The petitioners cited the judgments delivered by the apex court's constitution bench with regard to adultery provision, Section 377 of the IPC and the right to privacy in support of their contention.
They sought a direction to strike down Section 9 of the Hindu Marriage Act, Section 22 of the Special Marriage Act and Order 21 of the Rules of 32 and 33 of the Code of Civil Procedure so far as those related to restitution of conjugal rights for being violative of fundamental rights.