Personal Autonomy versus The Matrimonial Remedy of Restitution of Conjugal Rights

  • Nikunj Agarwal
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  • Nikunj Agarwal

    Student at Symbiosis Law School, Pune, India

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Abstract

Background: Recently, in 2019, two law students of National Law University, Ghandhinagar had filed a Public Interest Litigation before the Supreme Court of India under Art. 32 of the Constitution of India thereby, challenging the constitutional validity of Section 9 of the Hindu Marriage Act, 1955 (‘HMA’), Section 22 of the Special Marriage Act, 1954 and Rules 32 and 33 of Order XXI of the Code of Civil Procedure all dealing with the matrimonial remedy of restitution of conjugal rights. Objective: In lieu of the above, the author, in this paper seeks to understand the remedy of restitution of conjugal rights and the manner in which it has been misused by the spouses. Further, the author also seeks to analyze the constitutional validity of the said remedy in light of expanding scope of Articles 14, 19 and 21 of the Constitution of India and make suggestions accordingly. Research Methodology: The study undertaken herein is doctrinal research based on data gathered from articles, blogs, research papers, case laws, Govt. reports and academic-books. Reliance has also been placed on statutory and constitutional provisions to substantiate the research. Findings and Conclusion: Through the research undertaken, it was found that more often than not, the remedy of restitution of conjugal rights was misused by the husbands thereby, making it an outdated remedy not suitable for the modern and empowered India. It is worthwhile to mention that the said remedy has already been abolished in a number of foreign jurisdictions and it is high-time that India breaks free from the shackles of the patriarchal conception of a woman being dependent on a man and not having her own autonomy, keeping in mind that the said remedy is in fact violative of the fundamental rights guaranteed under the Constitution.

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Research Paper

Information

International Journal of Law Management and Humanities, Volume 5, Issue 1, Page 369 - 381

DOI: https://doij.org/10.10000/IJLMH.112485

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

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