The Supreme Court on Tuesday sought a response from Attorney General K K Venugopal on a plea for striking down a legal provision for restitution of conjugal rights on the ground of 2017 judgment recognising the right to privacy, and individual autonomy, as fundamental rights.
A bench presided over by Justice Rohinton F Nariman sought assistance from the top law officer on the petition jointly filed by Ojaswa Pathak and Mayank Gupta, two law students.
The top court had on March 15, 2019 issued notice to the Union government on a plea challenging 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 the 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 the restitution of conjugal rights for being violative of fundamental rights.
