Relevance: GS-1: Salient features of Indian Society, Diversity of India, Role of Women and Women’s Organization.

Relevance: GS-2: Indian Constitution—Historical Underpinnings, Evolution, Features.

Key Phrases: Special Marriage Act, Sapindas, Matrimonial Obligation, Right to privacy, Adultery, Desertion

Why in News?

• There have been many cases where women have been facing serious troubles mainly in Northern India after getting married to Non-Resident Indians (NRI).
• The major reason for such cases includes, that either the groom would dump the bride in India after marriage or take her along for other reasons.
• The major problem arises when the dispute arises and no one knows which jurisdiction to approach and hence proving the validity of the marriage becomes a daunting task.

Hindu Marriage Act, 1955

It extends to the whole of India, except the State of Jammu and Kashmir, applies also to Hindus domiciled in territories to which the Act extends and those who are outside the said territories. Key aspects includes:

• It applies to Hindus (in any of its forms or development) and also to Buddhists, Sikhs, Jains and also those who are not Muslims, Christians, Parsis or Jews by religion.
• It does not apply to members of any scheduled tribes unless the Central Government by notification in the official Gazette otherwise directs.
• Provisions in regard to divorce are contained in Section 13 of the Hindu Marriage Act and Section 27 of the Special Marriage Act.
• Common ground on which divorce can be sought by a husband or a wife under these Acts fall under these broad heads:
  • Adultery,
  • Desertion,
  • Cruelty,
  • Unsoundness of mind,
  • Venereal disease,
  • Mutual Consent
  • Not being heard of as alive for seven years

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.
• Conjugal Rights also mean the same when the couple is married they have certain matrimonial rights which should be performed by both the spouses.
• The law recognizes these rights— both in personal laws dealing with marriage, divorce etc., and in criminal law requiring payment of maintenance and alimony to a spouse.
• Conjugal Rights includes:
  1. Living together: The spouses or the married couple should live together
  2. Marital intercourse: The spouses or the married couple have rights and duties together with each other and have physical or sexual relationships.
  3. Comfort to each other: The spouses should give comfort to each other like; emotional and mental comfort.
  4. Matrimonial Obligation: The married couple is supposed to share the responsibility of the households as well.
• Provisions of restitution of conjugal rights like Section 9 of the Hindu Marriage Act and Section 22 of the Special Marriage Act empower a husband or a wife to move the local district court, complaining that the other partner has “withdrawn” from the marriage without a “reasonable cause”.
• The petition gives the court the authority to order the “withdrawn” spouse to return to the matrimonial home.
• Order 21 Rule 32 of the Civil Procedure Code allows the court to attach the property of the “errant” spouse if he or she does not comply with its order to return.
• The meaning and extent of key words in the provisions like “withdrawn” or “reasonable cause” are ambiguous.
• The law is being challenged now on the main grounds that it violates the fundamental Right to privacy.
• The concern is that with marital rape not an offence, the provisions of restitution of conjugal rights, when aimed at a woman, takes away her bodily autonomy and forces her to stay with her husband. If a woman does not comply to return to her husband, the court could even attach her property.

Major Landmark Judgments on it-

• In one of the early judgments in the 1960s, the Punjab and Haryana High Court in the Tirath Kaur case, upheld restitution of conjugal rights, noting that “a wife’s first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection”.
• In 1984, the Supreme Court had upheld Section 9 of the Hindu Marriage Act in the case of Saroj Rani v Sudarshan Kumar Chadha, holding that the provision “serves a social purpose as an aid to the prevention of break-up of marriage”.
• The Madhya Pradesh High Court in the Vibha Shrivastava case, busted the ‘orthodox concept of the Hindu wife as Dharmpatni, Ardhangini’, and said that the wife is a partner in marriage with equal status and equal rights with the husband.
• In the well-known case of actor Sareetha, the Andhra Pradesh High Court said that, “sexual cohabitation is an inseparable ingredient of a decree for restitution of conjugal rights”.
• The fight against marital rape and restitution of conjugal rights has gained a new lease of life with the Supreme Court’s nine-judge Bench upholding privacy as a “constitutionally protected right” which gives a person complete authority to decide one’s matters of personal intimacies, sanctity of family life, the home, sexual orientation, etc.
• The Supreme Court, in its recent Joseph Shine judgment, concluded that the State cannot exercise authority in a person’s private affairs.

Sources: Indian Express  Live-Law

Mains Question:

Q. Recently there have been cases of validity of marriages due to marriages with NRI’s. In this context discuss the key points of Hindu Marriage Act and conditions of the marriage mentioned in it? Give a brief about the concept of Conjugal rights in the Hindu Marriage Act as well as in Special Marriage Act and whether Uniform Civil Code can work as a solution?