READING DOWN OF RESTITUTION OF CONJUGAL RIGHTS ESSENTIAL FOR A SAFER INDIA

(image source – Feminism in India)

As we are in the 21st century, it is high time to rethink and restructure the divorce laws in the country. The Restitution of Conjugal Rights, a legal provision within the Hindu Marriage Act (1955)/Special Marriage Act (1954), is observed and critiqued by feminists and social justice critics as an aberration to women’s rights in the country. This provision limits the right of the withdrawing spouse, and requires them to cohabit with their partner.

In a country bound by systemic oppression of women through patriarchy and caste, it is mostly the women who have to bear the burden of further sharing a space with their emotional/physically abusive male spouses. Essentially a colonial law that was, interestingly, gone away with by the British government in 1970, has still made repercussions to upholding the autonomy of women in the subcontinent. In 2019, the Sections 9 and 22 that were included in the provision was challenged by a petition that cited it violates Article 14, 15 of the Constitution, along with right to privacy. It needs to observed that this section fundamentally violates the bodily agency of the woman as it enforces a conjugal exchange with the partner that they are wishing to separate from.

In 1983, the High Court of Andhra Pradesh had stated that right to privacy is not simply lost due to a marital association of the individual, however, this was later overruled by other High Courts and eventually the Supreme court by reinstating the validity of RCR.  The only explication put forth by defenders of RCR is that most women in the country do not belong to a social-economic/political system that gives them a space to withdraw and continue independently. But this critique needs to redefined by not compromising the spatial aspects of a women and separating it from their socio-economic position in their communities.

When a divorce is filed by a woman in the country, or anywhere in the world, it is of utmost assurance that it mostly has something to do with the patriarchal characteristics of the institution of marriage, and the RCR surely restricts the freedom of bodily agency, privacy, dignity and mobility of a woman.

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