Rukhmabai Raut was among the first women to take on child marriage head-on, seeking a divorce from a man she was married to at the age of 11, because she wanted to study medicine. In 1887, after a Bombay court ruled that she must live with her husband or go to jail for six months, she chose the latter. She went on to secure admission to the London School of Medicine for Women, returning to practice at Madame Cama Hospital in Bombay, and later, Sheth Morarji Vibhukandas Malawi dispensary in Surat, today named Rukhmabai Hospital. Pic courtesy/Wiki Commons

What is seen as an outdated Victorian law is up for review before the Supreme Court after a plea was filed earlier this month by Ojaswa Pathak and Mayan Gupta, students of the Gujarat National Law University challenging the validity of Section 9, arguing that a court-mandated restitution of conjugal rights amounted to a “coercive act” on the part of the state, violating an individual’s sexual and decisional autonomy, and right to privacy and dignity. 

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On August 27, 2017, a nine-judge Bench of the Supreme Court passed its landmark Right to Privacy judgment, anointing right to privacy to the status of a fundamental right. Ever since, there has been debate over Section 9 being void and unconstitutional. The plea stated: The plea stated, “Courts in India have understood ‘Conjugal rights’ to have two key ingredients: cohabitation and sexual intercourse. Under the legal scheme in India, a spouse is entitled to a decree directing his other spouse to cohabit and take part in sexual intercourse. He or she is also entitled to coercive measures in the form of attachment of property in case the spouses wilfully disobey the decree of restitution.”

Raghav Pandey and Mrunalini Deshmukh

While Britain struck down the law in 1970, Indian couples, especially women, have struggled with it. While the provisions for conjugal rights empower both men and women to move court, the law is seen as fundamentally discriminatory towards women in India where familiar structures are sorely unequal. Jurists and sociologists criticising the law point out that in a country where marital rape is legal, a man can force his wife into sexual intercourse without facing the consequences. 

Raghav Pandey, Assistant Professor of Law at the Maharashtra National Law University, agrees that the law should be struck down as it not only violates personal liberty but also right to life. “In India, marital rape is still not a crime. Forcing a wife to cohabit with her husband leaves her vulnerable to forceful sexual intercourse.” Archaic legal provisions end up prolonging an already arduous divorce case, allowing both parties to exploit the loopholes. Pandey says women too have often abused the law, resorting to proving mental trauma, cruelty or infidelity while cohabiting  to establish beyond reasonable doubt the grounds for divorce. “Here too,” believes Pandey, “the provision is misused.” 

Vandana Shah

Legal experts argue that it’s best if courts hear contentious issues in a divorce matter while divorce is granted in any case. They offer the example of Hollywood’s most bitter separation. Stars Angelina Jolie and Brad Pitt fought an ugly custody battle for their six children that has been going on since 2016, long after they had already been granted a divorce. At home, actors Konkana Sen Sharma and Ranvir Shorey managed a peaceful divorce. Reports said that the couple had opted for counselling. Although they didn’t reach a consensus on key issues at the time, they were mature enough to settle for a quick divorce, especially in the interest of their child.  

Divorce lawyer Vandana Shah says peaceful divorces are rare. Most divorce cases in India drag on for decades, owing to the provision of restitution of conjugal rights. “One female client I represented had only lived with her husband for 72 days, but their divorce case went on for nine years. She was insistent that she wished to return to live with him. The provision supported her, despite the fact that the efforts were being made because she wanted her in-laws to buy her a bungalow. It’s true 
that some women have misused it, but it’s also because they have nowhere to go.” 

The restitution of conjugal rights provision is often used to delay divorce cases. Legal experts say that courts should intervene only on contentious matters and grant divorce anyway. Internationally, actors Angelina Jolie and Brad Pitt may have fought a bitter custody battle for their kids, but they were granted divorce much before that, on grounds of irreconcilable differences. In India, experts cite the Konkana Sen Sharma and Ranvir Shorey divorce as one where the spouses put aside their differences, and after counselling, opted for a clean, quick divorce. Pics/Getty Images

In such cases, the courts have also questioned the use of the provision. In 2019, the Madras High Court rejected the plea of a woman for restitution of conjugal rights by stating that it was already 18 years since she had been living away from her estranged husband and therefore no useful purpose would be served in forcing the latter to rejoin her now. In 2020, the Gujarat High Court quashed a Bhuj family court’s decision that a woman living in London return to India to fulfil her matrimonial duties. The court also said that the husband can’t be seeking divorce on one hand and on the other, ask his wife to return to him. In 1984, while looking at the case of  “Saroj Rani versus Sudarshan Kumar Chadha”, the Supreme Court had stated that the objective of the decree was only an inducement for the spouses to live together, and that it did not force an unwilling wife to engage in sexual relations with the husband. The aim was only to bring about “cohabitation” between spouses, and therefore, it was only focused on “consortium”.

Experts believe that the idea behind the restitution of conjugal rights first faced a legal challenge as far back as 1885 when 22-year-old Rukhmabai Raut refused to cohabit and solemnise her marriage with her husband Dadaji Bhikaji, who she was compelled to marry when she was just 11. Rukmabai who went on to become one of India’s earliest women doctors, was tried in the Bombay High Court on a suit for restitution of conjugal rights demanded by Bhikaji. The case went on till 1887 during which the judge had even sought to enforce his decree by warning Rukhmabai with imprisonment of six months. 

Women rue that not much has changed. 

Advocate Mrunalini Deshmukh, who practices at the family court in Mumbai, says that what has changed is the value we attach to privacy, consent and sexual agency. She puts it simply: “You can’t tell two adults who don’t like each other to live with each other. The provision has been responsible for making matters lengthy and ugly because if one party pushes for the provision to be applied and the spouse disagrees, there is a provision to pay a penalty by way of a fine or have property attached. “So, it most often leads to chaos. Quashing the provision will mean fewer petitions and less of a backlog. It’s time.” 

Some names have been changed to protect identity aastha.banan@mid-day.com