'Important point': SC seeks Centre's stand on plea against conjugal rights restitution

The bench adjourned the matter for two weeks following submissions of Additional Solicitor General Aishwarya Bhati, representing the Centre, seeking time to file the counter-affidavit

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IANS

The Supreme Court on Thursday granted two weeks' time to Centre to file a counter-affidavit on a plea challenging the provisions dealing with restitution of conjugal rights.

A bench comprising Justices RF Nariman, Justice KM Joseph, and Justice BR Gavai adjourned the matter for two weeks following submissions of Additional Solicitor General Aishwarya Bhati, representing the Centre, seeking time to file the counter-affidavit.

Justice Nariman said: "This is a very important point on Section 9 (of Hindu Marriage Act)."

The top court was hearing a PIL filed by Ojaswa Pathak challenging the Section 9 of the Hindu Marriage Act, Section 22 of the Special Marriage Act and Rules 32 and 33 of Order XXI of the Code of Civil Procedure.

Bhati acknowledged it is an important issue and sought the court's permission to submit a response along with some documents to assist the court. At this, the bench said: "Okay then, counter affidavit to be fully filed in 2 weeks. List after 10 days".

Senior advocate Indira Jaising submitted this is purely question of law, namely what is the constitutional validity of Section 9 of the Hindu Marriage Act, and urged the court to hear the matter after one week, instead of two weeks.


The bench also informed advocate Shoeb Alam that it will take up his intervention application with the main matter.

After arguments, the bench posted the matter for further hearing on July 22.

The plea argued that the remedy of restitution of conjugal rights was not recognised by any of the personal law systems of India and contended that court-mandated restitution of conjugal rights amounted to a "coercive act" on the part of the state, which violates one's sexual and decisional autonomy, right to privacy, and dignity. The plea added this fall under the purview of right to life and personal liberty under Article 21 of the Constitution.

"The same has its origins in feudal English law, which at that time considered a wife to be the chattel of the husband. The United Kingdom itself has abolished the remedy of restitution of conjugal rights in 1970," said the plea.

According to Section 9 of the Hindu Marriage Act, when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

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