If marriage serves as the basis of social order, then extending Constitutional principles into it makes for a just social order. There is both precedent and justification for the abolition of section 9 of the Hindu Marriage Act, which enables an aggrieved spouse to apply to the district court for restitution of conjugal rights, and the latter to decree it, upon its satisfaction that there is no legal ground to deny it.
“Private is what men call the damage they want to be permitted to do as far as their arms extend to whomever they do not want permitted to fight back.”
– Catharine A. MacKinnon, American feminist legal scholar, activist, and author
In ‘Toward a Feminist Theory of The State’ (1989), Catharine A. MacKinnon talks about how certain rights need some ‘preconditions’ to be meaningfully delivered, and public intervention is required to establish those preconditions. However, the institution of marriage has been considered to be off limits by the State. Thus, the imbalances of power within it are preserved, and rights are not meaningfully delivered.
These imbalances were not taken into account by the Supreme Court while deciding Saroj Rani versus Sudarshan Kumar Chadha (1984), in which the constitutionality of restitution of conjugal rights (‘RCR’) was upheld. Currently, the constitutionality of the remedy of RCR is pending before the Supreme Court in the writ petition of Ojaswa Pathak versus Union of India, which was filed on February 19, 2019 and last heard by the court in July last year.
Currently, the constitutionality of the remedy of RCR is pending before the Supreme Court in the writ petition of Ojaswa Pathak versus Union of India, which was filed on February 19, 2019 and last heard by the court in July last year.
In this piece, I attempt to prove that Saroj Rani was incorrectly decided, and agree with constitutional law scholar and writer Gautam Bhatia’s view that the Andhra Pradesh High Court’s decision in T. Sareetha versus T. Venkata Subbaiah (1983) was an attempt at ‘democratizing’ the private sphere. This shall be done firstly, by looking at how the remedy of RCR denies women decisional privacy in matters of sex. Secondly, we shall look at the use of personal laws by the State to deny women their rights. Thirdly, a case is made for the abolition of Section 9 of the Hindu Marriage Act, 1955 by engaging with Indian feminist thought and the reasoning in the Supreme Court’s judgment in Joseph Shine versus Union of India (2018). Lastly, a case is built for the abolition of the remedy by proving that there is both precedent and justification for doing so.
In Justice K. S. Puttaswamy & Anr. versus Union Of India & Ors. (2017), the Supreme Court held that the right to privacy includes within it, decisional privacy, that is, the privacy to make ‘intimate personal choices’, including the right to decide who to live with.
Bhatia explains that the tension between decisional privacy and institutional privacy arises when the State grants privacy to the institution of marriage and does not interfere in it, even if its participants are denied their freedoms. However, understanding the ‘sex difference’ that exists at the centre of marriage, and the way it manifests itself in terms of a gendered division of labour in the home and economic dependence of women on their husbands, can help appreciate why even in the institution of marriage, the State must interfere, when rights are violated.
Comparing T. Sareetha and Harvinder Kaur
In T. Sareetha, importance was given to an individual’s right to choose by viewing RCR as coercing sexual intercourse from the woman. This is where MacKinnon’s ‘preconditions’ become important. In T. Sareetha, it was realised that although the decree by itself does not compel sex, but given the inequalities in a marriage, women’s right to privacy would erode in such circumstances. Thus, the precondition of equality being absent, women’s rights are not effectively delivered to them.
In Harvinder Kaur versus Harmander Singh Choudhry (1983), however, the Delhi High Court, only a few months after T. Sareetha, held that marriage is “the very foundation of civil society” and thus, public interest in the preservation of marriage is not unwarranted. In Saroj Rani, it was said that conjugal rights haven’t been created by law, but are rights “inherent in the very institution of marriage itself”. In both the cases, the institution was placed at a higher pedestal than the decisional privacy of its participants.
But there are problems with this view. Firstly, MacKinnon talks about how leaving the State out of the home would require an assumption that “the private is not already an arm of the state” and does not have its own symmetries of power. Viewing the institution as an entity that deserves to be left alone denies its participants their rights, especially those that have already been discriminated against (women). Assuming that the introduction of ‘cold principles of constitutional law’ would destroy the institution is a tacit acceptance of the fact that the institution does not treat its participants as equals and would crumble in the absence of its exploitative structures. This is where T. Sareetha becomes transformative, in that it treats the individual as the entity that holds the right, and does not lose it merely by marital association.
Secondly, the criticism of T. Sareetha in Harvinder was that it overemphasized sex, and that the remedy does not coerce sex. The court offered an illustration where if a wife denies sex to her husband, the State cannot go into the bedroom and restitute his rights. But here, the court has assumed that in a private set-up, the wife has enough autonomy to deny sex. However, when viewed against the fact that marital rape is not an offence, this argument falls apart. This was realized in T. Sareetha when the court held that this remedy takes away an individual’s right to decisional privacy, and is an invasion of an “individual’s zone of intimate decisions”.
In T. Sareetha, it was realised that although the decree by itself does not compel sex, but given the inequalities in a marriage, women’s right to privacy would erode in such circumstances. Thus, the precondition of equality being absent, women’s rights are not effectively delivered to them.
Thus, T. Sareetha was correct in declaring section 9 of the Hindu Marriage Act to be unconstitutional, for it recognized how the ‘sex difference’ in marriage works so that even a facially neutral law like section 9 that provides the remedy to both men and women, disproportionately impacts women.
Personal laws and the private sphere
Bhatia’s argument that the State is actively involved in enforcing personal laws and thereby constructing the private sphere can be seen in the Punjab and Haryana High Court’s judgment in Kailash Wati versus Ayodhia Parkash (1976). Here, the court used the responsibilities defined under Hindu law of a husband to maintain his wife, and of a wife to submit to her husband’s authority, to mean that the husband should get the right to decide where the couple lives. In Gaya Prasad versus Bhagwati (1965), it was held by the Madhya Pradesh High Court that even if the husband doesn’t earn enough income, that is still not a ‘reasonable excuse’ for the wife to leave his residence to take up a job elsewhere.
Personal law was thus used by the State in two ways –
- Define what rights and duties individuals have and actively uphold them, even if they are at odds with their constitutionally-protected rights (here, a woman’s right to work).
- Sanction exploitative practices, and set up a boundary around the institution of marriage, where the State must not enter.
However, the Delhi high court, in Swaraj Garg versus K.M. Garg (1978) took a different view and held that any law that gives the husband the sole right to determine the place of residence goes against Article 14 of the Constitution, and doesn’t follow good logic. The Law Commission of India, in 2018, said that a decree of RCR, by forcing a woman to leave her job and cohabit with her spouse, takes away her “hard-earned freedoms”. Mackinnon’s idea of privacy as a ‘sword’ in men’s hands becomes clear here, as discriminatory laws, when relied upon by the State, can legitimize violation of rights.
Decisional privacy in familial structures
In her book ‘The High Caste Hindu Woman’ (1887), social reformer Pandita Ramabai explains how marriage has been understood to not be an alliance of two individuals, but a woman entering into a family. Thus, marriage is viewed not from the view of two individuals living together, by free choice, but as a public good aimed at preserving family and society.
The same view was expressed by the Attorney-General for India in Harvinder Kaur. The primary concern of the State is thus, not individual autonomy within the family, but the preservation of marriage as a public good. Feminist activist Tarabai Shinde also gave an account of the inequalities that have persisted in families (her idea of widow remarriage was based on free choice for women in the private sphere) as early as in 1882. Indian feminist thought has thus been calling for decisional autonomy even in the private sphere.
Justice Dr. D.Y. Chandrachud’s opinion in Joseph Shine has important implications when it comes to the public/ private divide, for it disallowed carving out ‘familial structures’ as private spaces where Constitutional rights can be violated. The public/ private distinction was rendered ‘irrelevant’ when it comes to the enforceability of rights.
Assuming that the introduction of ‘cold principles of constitutional law’ would destroy the institution is a tacit acceptance of the fact that the institution does not treat its participants as equals and would crumble in the absence of its exploitative structures.
Thus, Justice A.B. Rohatgi’s ‘bull’ (in Harvinder Kaur) of Constitutional principles has been brought into the marital sphere, and rightly so. The view of marriage taken in Joseph Shine, of two equal individuals coming together, and not considering the institution to be an independent right bearer, forms the premise of the argument against section 9 of the Hindu Marriage Act. The tension between decisional privacy and institutional privacy was thus resolved, and the scales were tilted towards the former.
Dismissing the State’s argument
In Harvinder Kaur, the Attorney General argued against T. Sareetha. An attempt has been made here to rebut them.
Firstly, the implication of T. Sareetha wouldn’t be the destruction of social organization. T. Sareetha went as far as restoring decisional privacy of women, not uprooting the foundations of conjugal life. Secondly, even if there is public interest in the preservation of marriages, forcing unwilling people to cohabit preserves only a marriage in law, not in fact. Thirdly, the argument that people are forced to cohabit only when one spouse has withdrawn without reasonable excuse does not hold because the reasonable excuse is based on individual experience, and need not necessarily stand up to legal scrutiny every time.
Lastly, the criticism by Justice Rohatgi that T. Sareetha overemphasized sex does not prove the lack of good argument. It was the emphasis on sex that helped realize how the law in effect denies women their rights.
Abolishing section 9
The Report of the High Level Committee on the Status of Women in India set up in 2015 recommended the abolition of the remedy of RCR, because it was being used to deny maintenance claims made by wives. Moreover, the report of a Joint Parliamentary Committee in 1952, set up to examine the Hindu Marriage and Divorce Bill, 1952, called it ‘inhuman and immoral’ to force unwilling people to live together, and argued for not including the remedy of RCR in the law.
The view of marriage taken in Joseph Shine, of two equal individuals coming together, and not considering the institution to be an independent right bearer, forms the premise of the argument against section 9 of the Hindu Marriage Act.
The Protection of Women from Domestic Violence Act, 2005 was enacted to protect constitutionally-protected rights of women, who are victims of the violence that occurs “within the family”. According to the Statement of Objects and Reasons of the Act, this violence denies women their rights protected under Article 14 (right to equality), Article 15 (right against discrimination) and Article 21 (right to life). The Act says that such acts of violence go unnoticed in the ‘public domain’. This was enough justification for the State to step into the private sphere and introduce notions of equality and liberty.
It was thus, recognized that whatever happens in the private sphere can’t be looked away from merely because it happens in the privacy of the family. The State has thus already entered the private sphere and gone against Justice Rohatgi’s caveat. There is both precedent and justification for the abolition of section 9 of the HinduMarriage Act.
An argument for the utility of the remedy of RCR may be made, keeping in mind that women do file cases under section 9, as was the case in Saroj Rani. Here, Justice Rohatgi’s comment about divorce rates and women’s emancipation rising proportionately becomes important, for when provided with the freedom to make choices, women do choose to leave abusive domestic set-ups. The focus should be on giving women the economic freedom and decisional privacy to make choices. The State’s duty must be to make sure that the preconditions of equality are present, and both the spouses stand on equal footing at the time of making a decision.
However, as was seen in Saroj Rani, the remedy was sought for even after allegations of maltreatment were made against the husband. Further research on why women seek the remedy even in such circumstances could be done. But here, the argument is submitted on the basis of those cases where women have been denied rights, repeatedly.
MacKinnon’s idea of privacy as a tool of oppression, by men and for men, and Justice Chandrachud’s characterization of the private/public spheres as irrelevant when it comes to enforcing rights, when read together, help appreciate the ‘transformative’ view taken in T. Sareetha.
In American legal academic Katharine T. Bartlett’s words, asking the ‘woman question’ and looking at how even a facially neutral law impacts women can help understand the challenge against RCR, and how it denies women their right to decisional privacy guaranteed under Article 21.