The [4] Saroj Rani v. Sudarshan Kumar Chadha: Section 9 of the Hindu Marriage Act, 1955 provides for the remedy of “restitution of conjugal rights”. Under this remedy, the Court may force an unwilling spouse to cohabitate and have sexual intercourse with his/her husband/wife as an attempt to save their marriage.
This implies that if a woman is unwilling to live with her husband, the Court has the authority not to only force her to cohabitate but also have sexual intercourse with him.
The Constitutionality of Section 9 was challenged before the Andhra Pradesh High Court in T. Sareetha v. T. Venkata. In this case the Court declared that the remedy of restitution of conjugal rights is unconstitutional as it violated Article 14, 19 and 21 of the Indian Constitution.
The Court noted that “No positive act of sex can be forced upon the unwilling persons, because nothing can conceivably be more degrading to human dignity and monstrous to human spirit than to subject a person by the long arm of the law to a positive sex Act.” This judgement was overturned by the Supreme Court in Saroj Rani wherein it upheld the constitutionality of Section 9 of the Hindu Marriage Act.
The Apex Court opined that “protection of institution of marriage” was a reasonable restriction upon the right to sexual autonomy guaranteed under the Constitution.
It was further held that the remedy of restitution of conjugal rights does not violate Article 14 as marriage is a reasonable ground for classification.
The Judgement of the Supreme Court in Saroj Rani, though it concerns the restitution of conjugal rights, as a pervasive impact upon the decriminalisation of marital rape.
It essentially states that depriving a woman of her sexual autonomy, as long as it is done to protect the institution of marriage, is permissible under the Indian constitutional jurisprudence.
It caters to the antiquated belief that marriage can only survive when the husband is given perpetual access to his wife’s sexual agency which is exactly the rationale behind decriminalising marital rape.
While most democracies around the globe have criminalised the act of marital rape, India remains one of the 36 countries that deem this heinous act innocent, unpunishable and important for the sustenance of marriage.
Justice D.Y. Chandrachud in his judgement in Joseph Shine v. Union of India, stated, “In adjudicating on the rights of women, the Court must not lose sight of the institutions and values which have forced women to a shackled existence so far.
To fully recognise the role of law and society in shaping the lives and identities of women, is also to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country.”
With the constitutionality of criminalisation of marital rape under judicial scrutiny, it remains to be seen whether women will finally be given the constitutional guarantees they have been unfairly denied or will they still be treated as non-sentinel beings in the garb of protecting institution of marriage.
To be continued….
The writer is a student of B.A.LL.B at Symbiosis Law School, Pune and the views expressed in the article are his own