- Divya Arya
- BBC correspondent
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If there is no physical relationship between husband and wife or they do not live together, then should this problem be resolved between them or through the courts? Is court intervention a violation of your privacy? And do existing legal provisions on this issue put women at risk of domestic violence and marital rape?
Two students from Gujarat National Law University have filed a petition with the Supreme Court to raise these issues, on which the court has notified the central government and asked for its opinion.
According to section nine of the “Hindu Marriage Act of 1955” and section 22 of the “Special Marriage Act of 1954”, a man or woman may go to court to obtain the order of his or her wife or husband to forcing her to continue the marriage relationship.
Students have now claimed in the petition that, “The legal provisions restoring marital relations are unconstitutional and should be repealed.”
image source, Hindustan Times
In 2018, the Supreme Court criminalized homosexual relations between two adults by mutual consent under two laws relating to private relations that were in force since British rule and adultery under Section 497. – was declared unconstitutional.
What does the current law say?
Under the “Hindu Marriage Act of 1955” and the “Special Marriage Act of 1954”, the husband or wife can complain to each other in the district court, obtain an order to have a physical relationship again and live together.
To do so, the complaining party must prove that there is no valid reason for separation despite the marriage.
The sanction is also set in the event of non-compliance with the order to re-establish judicial relations.
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In case of non-compliance with the order within one year, the court may transfer the property of this person to the complainant, enter him in the “civil prison” or may grant talaq for this reason.
These provisions of Indian law are the result of British rule. Britain had made these provisions when the woman was considered the “property” of her husband.
In 1970, Britain removed this provision for the restoration of marital relations by the “Marriage Procedures Act of 1970”. But it is still applicable in India.
How has this provision been used?
The biggest dilemma of this provision made for the supposed purpose of maintaining marriage is how to apply it to private life.
If the relationship in one marriage has become so bad that the husband and wife cannot live together and there is no physical relationship between them, then how can a legal order obtained by one person compel the other?
In fact, this law has been used less for the restoration of relations and more for the attainment of other purposes.
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For example, if the wife is claiming alimony, the husband may cite the non-relationship and may claim restitution to avoid liability for paying alimony.
Under Indian law, the court can order the husband to pay a monthly alimony for the maintenance of his wife, children and parents.
If the woman wins better, a similar order can also be given.
Apart from this, the relationship restoration benefit has also been used to get the divorce. If the husband or wife has no other reason to divorce, divorce is sought because the husband and wife do not have a physical relationship or do not live together.
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These provisions are useful for women or dangerous,
The law gives equal status to husband and wife. That is, either of them can demand the re-establishment of the marital relationship.
But because of the inequality that still prevails in the marriage system in society, many cases show that this provision has been used more on behalf of the husband to suppress the rights of the wife.
According to feminist activists, due to the silence on violence against women in families and the lack of legal recognition of rape in marriage, these provisions may force women to remain in marriages where they face domestic and sexual violence. .
The report of the ‘High Level Commission on the Status of Women’ made by the Ministry of Women and Child Development in 2015 also spoke of the misuse of this provision.
The committee had said in its recommendation that: “Whenever a woman claims alimony or complains of violence, a lawsuit is filed for the resumption of marital relations on behalf of the husband. Apart from that, this provision goes against human rights and whatever it is. forcing one person to live with another. “
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Why is there a demand to remove it?
In the consultation document published on ‘Reforms in Family Law’ in 2018, the Legal Commission had recommended the elimination of these provisions for the restitution of marital relations.
According to the report of the ‘High Level Committee on the Status of Women’, the commission had said, “There is no need for such provisions in independent India. There is a provision in the law. to divorce if there is no physical relationship beforehand. Man and woman. Both are becoming financially capable. It is not permissible to impose such restrictions on this hard-to-find freedom. “
In the petition filed with the Supreme Court, the students have referred to these two reports and demanded the removal of the provision, saying that its side effect is that “It is a law of equality in appearance but a woman live in it “. house of in-laws against her will. ”But it forces her, sees her as the husband’s property, violates the intimacy of husband and wife, and puts the structure of marriage above personal well-being.