Wedlock or Wed-Lockup? A Case for Abolishing Restitution of Conjugal Rights in India

Abstract

Colonialism in India consisted of a “civilizing mission” when the British rulers sought to initiate reforms in India, by projecting themselves to be the forerunners of modernity. Ironically, restitution of conjugal rights (RCR) runs contrary to any claims of modernity. Through an RCR, an unwilling spouse could be directed by the coercive machinery of the law to cohabit with his/her spouse, in recognition of the right of married persons to conjugality and consortium. Although couched in gender neutral terms, the remedy had and continues to have grave ramifications for women. This was applied by British judges to family law cases in India in the 1800s, and incorporated in family law statutes in post-independent India. RCR remains in force and is a legal remedy sought in the Indian courts till date, although it was abolished in England in 1970. This article critically examines RCR through historical, legal, feminist and comparative law perspectives. It analyses the impact of the English remedy on the norms of marriage and family in India, which are sites of oppression of, violence against and subordination of women. It argues for the repeal of RCR from the Indian statute books as it undermines bodily integrity and sexual autonomy of women in intimate relationships, and is incongruent with constitutional principles and India’s international human rights obligations.