Petition challenges powers given to courts under Hindu Marriage Act and other laws to force a separated couple to stay together

The Supreme Court, on Tuesday (March 5), decided to set up a three judge bench to examine a petition that has challenged existing provisions in various marriage laws that allow a court to order a separated couple to stay together.

An apex court bench of Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna said that the petition will be heard by a three-judge bench and directed the registry to list the plea filed by petitioner Ojaswa Pathak after one week.

The decision by the bench headed by Chief Justice Gogoi comes over five months after a Supreme Court bench of Justices UU Lalit and MM Shantanagoudar had dismissed a similar plea.

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.

In September 2017, the Delhi High Court had sought a response from the Centre on a plea seeking to declare the sections relating to the restitution of conjugal rights in various Acts as unconstitutional in the wake of the Right to Privacy ruling. The Delhi High Court bench comprising then Acting Chief Justice Gita Mittal and Justice C Hari Shankar had issued a notice to the Union Government on a plea filed by one, Sanjiv Kumar which had claimed: “It is crystal clear that state cannot force a wife or a husband when to consent for sex/cohabitation,” and that the legal provisions on restitution of conjugal rights “amount to state interference with a woman’s private decision whether or not to engage in sexual activity”.

Later, in October 2018, an apex court bench of Justices Lalit and Shantanagoudar had dismissed a petition filed by a woman who had challenged the provisions related to restitution of conjugal rights on the grounds she has a right to “sexual autonomy” in wake of the Right to Privacy judgment. The woman had filed the petition in the apex court after her estranged husband had moved a lower court demanding restitution of conjugal rights. The woman had said in her plea that the legal provisions that allow courts to force a separated couple to stay together  amount to a “coercive act” by the State compelling sexual co-habitation and that these infringe a woman’s fundamental right to privacy, dignity, mental and physical health, personal liberty and right to equality under the Constitution.

Justices Lalit and Shantanagoudar had dismissed the plea filed by the woman stating that the prayers made by her and assertions laid out in the petition were “pre mature” as a petition for restitution of conjugal rights had only been filed by her husband and the court concerned had not passed any order.

— India Legal Bureau