The Supreme Court is opening up discussion on provisions in the marriage act that allow courts to order warring spouses to cohabit. A Public Interest Litigation (PIL) filed by two law students, claims that Section 9 of Hindu Marriage Act (HMA) and Section 22 of Special Marriage Act which provides for restitution of conjugal rights, is a vestige of Victorian law that violates an individual's privacy and discriminates against women. However, since the validity of Section 9 of HMA was upheld in a 1984 SC case, petitioners Ojaswa Pathak and Mayank Gupta demanded this judgment be revisited.

Defining conjugal rights to mean cohabitation and sexual intercourse, the petition argued by senior advocate Sanjay Hegde submitted that Section 9 is based on a feudal mindset that saw women as "chattel" and men's property. Hegde said that the Court saw the Section as an "aid to the prevention of break-up of marriage", but by declaring privacy as a fundamental right, this judgment needs to be revisited. "Personal autonomy and dignity cannot be sacrificed at the altar of family life," the petition said.

A bench of Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna found substance in the argument and posted the PIL for hearing before a three-judge bench next week; only a three-judge bench can reconsider a verdict delivered by a two-judge bench.

"Society is changing into one where the private interest of sexual autonomy, dignity and happiness of an individual is put before concerns such as societal morality or family life," said the petition filed by advocate Pranjal Kishore, "Thus, there exists no compelling interest for the state to interfere in matters related to conjugal rights."

In addition, the petition said that a 2015 Report of the High-Level Committee on Status of Women prepared by the Ministry of Women and Child Development had recommended deletion of Section 9 of HMA and its parallel provision in Section 22 of Special Marriage Act. Under these provisions, if a partner refused to abide with the court's decree, his assets would get attached as a consequence.

In its privacy judgment of August 2017, SC had ruled, "Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation." Last year, when the Court decriminalized gay sex contained in Section 377, it said, "Autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body."

‘AUTONOMY IS INDIVIDUALISTIC’

• Sec 9 & Sec 22 provide for restitution of conjugal rights between acrimonious spouses  
• Conjugal rights, here mean cohabitation and sexual intercourse within a marriage  
• PIL argues this is a vestige of Victorian law that violates an individual’s privacy