Tanisha Chivate, Maharashtra National Law University, Mumbai & Jhanvi Sahni, National Academy of Legal Studies and Research (NALSAR)
ABSTRACT
The Hindu law was formalised in 1955 and since then, some of its laws have gained validation whereas some have been subjected to criticism. Section 9 of the Hindu Marriage Act, 1955 guarantees a Hindu husband or wife the right to enforce conjugal rights by allowing the aggrieved party to move the court to enforce the right to consortium. Although it is a part of codified Hindu personal law, this right stems from British and European traditions. Due to its controversial nature, the UK has repealed it, but India hasn’t. This provision albeit is gender-neutral has been proven to disproportionately affect women more than men as women are called back to their marital homes which further increases the possibility of marital rape due to forced cohabitation. The authors intend to evaluate this provision by tracing its origin and viewing it from a feminist perspective while simultaneously examining its constitutional validity. The restitution of conjugal rights can be said to violate several fundamental rights, Articles 14, 19 and 21 to name a few. After conducting a thorough analysis of the same, the authors aim to discuss constructive suggestions which would help to map out the road ahead.
Keywords: conjugal rights, restitution, Constitution, fundamental rights, feminism.
