NEW DELHI: The Union government has countered before the Supreme Court a plea filed to question the constitutional validity of provisions relating to restitution of conjugal rights under the Hindu Marriage Act and Special Marriage Act, saying those are meant to preserve the institution of marriage by a relatively soft legal remedy.
In a written response to a plea filed by a student, Ojaswa Pathak and another person, the Law Ministry submitted that the nature of the institution of marriage is to be properly understood and appreciated before understanding the rationale behind the remedy of conjugal rights.
It is settled law that as per Hindu Personal Law, especially concerning Hindu Marriage Act, 1955, marriage is not a union, it is a sacrament. In other words, it is settled law that Hindu Personal Law attaches a greater degree of sanctity to the institution of marriage, it said.
The affidavit stated that the statutory mechanism provided in the various enactments for restitution of conjugal rights is aimed at bringing in cohabitation between estranged parties so that they can live together in the matrimonial home in amity.
"The intention of restitution of conjugal rights is to preserve the institution of marriage, allowing spouses to a relatively soft legal remedy by which they can iron out differences arising out of the normal wear and tear of matrimonial life with judicial intervention and is aimed towards cohabitation and consortium and not merely sexual intercourse, it said.
The petitioners claimed the restitution of conjugal rights violated the right to privacy.
The government's response said, the decision rendered by this court in its privacy judgment had in effect upheld its earlier decision in Saroj Rani and reaffirmed the vires of various provisions for restitution of conjugal rights and had also clarified that the right to privacy is not absolute and is subject to reasonable restrictions by the state in order to protect larger public interest, which in the present case is the institution of marriage and family.
The plea before the court sought a declaration from the court that Section 9 of the Hindu Marriage Act, 1955, Section 22 of the Special Marriage Act, 1954 and order 21 rule 32 and 33 of the Code of Civil Procedure, 1908 are violative of fundamental rights and hence unconstitutional.
"It is submitted that the remedy of restitution of conjugal rights, is a positive, useful and practical matrimonial remedy, available to both spouses in equal measure and vigor, which is widely used by estranged couples in an endeavor to find solutions to matrimonial differences and problems, which may not be so grave so as to warrant taking recourse to more serious remedies, which invariably push the already strained marital relationship to a point of no reconciliation," the government said.
