The Supreme Court on Thursday allowed 10 days time to the Central government to file a counter-affidavit in a petition challenging the constitutional validity of conjugal rights.
A bench of Justices R.F. Nariman, K.M. Joseph and B.R. Gavai listed the matter for further hearing on July 22.
The petition has been filed by Ojaswa Pathak and Mayan Gupta, students of the Gujarat National Law University challenging the validity of the Section 9 (Restitution of conjugal rights) of the Hindu Marriage Act, Section 22 of the Special Marriage Act and related provisions of the Code of Civil Procedure.
Senior Advocate Indira Jaising, appearing for the petitioners, submitted that the matter relates to the question of law over the validity of Section 9 of the Hindu Marriage Act, etc, and the same be adjourned to a shorter date.
The issue of whether the existing legal provisions – Section 9 and Section 13 of the Hindu Marriage Act, Section 22 of the Special Marriage Act and Order 21 Rule 33 of the Code of Civil Procedure – can be deemed as void and unconstitutional has come up before various courts, including the Supreme Court, ever since a nine-judge bench of the apex court passed its landmark Right to Privacy judgment on August 24, 2017.
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.”
“The provisions for restitution of conjugal rights are facially neutral in as much as they allow both the husband and the wife to move court. However, in effect, they are deeply discriminatory towards women. The direct and inevitable effect of the provision has to be seen in light of the deeply unequal familial power structures that prevail within Indian society,” the plea added.