Restitution of Conjugal Rights aimed at preserving marriage Rather than Only Allowing for Consenting Sexual Activity

A plea was filed in the Supreme Court challenging the constitutional validity of the provisions of Section 9 of the Hindu Marriage Act, Section 22 of the Special Marriage Act, and Order 21 Rule 22 and 23 relating to Conjugal Rights. Opposing the same the Central Government on Tuesday, 5th September 2022 filed a Counter Affidavit. (Ojaswa Pathak and another versus Union of India and others).

The Central Government in its affidavit filed before the top court submitted that the restitution of conjugal rights clause intends to preserve the institution of marriage and that consensual sexual activity is a necessary component of marriage.


Matrimony essentially entails a voluntary expression of spouses to cohabit and have a home and family together. Voluntary sexual intercourse is an integral part of the marriage,” the affidavit said.

The Central Government submitted that Marriage in any societal setup also entails numerous social and public aspects thus the notion entertained by the petitioner that marriage is only a private institution is wrong.

It was also submitted in the affidavit that the suggestions of the petitioners that this positive, practical, and innocuous matrimonial remedy is a coercive measure on the ‘intimate personal choice to cohabit and take part in sexual intercourse with another, of a spouse, is wholly misconceived, fallacious and utopian.”

Two GNLU law students challenged the court’s ruling in the case of Saroj Rani v. Sudarshan Kumar Chadha. It was found in the decision that the remedy of restitution of conjugal rights is inherent to the very institution of marriage itself and Section 9 of the Hindu Marriage Act is only a codification of the pre-existing law. 

Section 9 states:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”

Section 22 of the Special Marriage Act has a similar clause.

The affidavit stated that “The Petitioner herein is interpreting the Privacy judgment completely dehors the context to wrongly contend that a right which is intrinsic to the very institution of marriage has been taken away by virtue of the said Privacy Judgment”

The counter affidavit also emphasized that the main goal of restitution of conjugal rights is to facilitate cohabitation between estranged parties to the marriage so they can live together in the matrimonial home in amity and that the “intention of restitution of conjugal rights is to preserve the institution of marriage and not merely sexual intercourse.”

The matter was listed before a 3-judge bench led by Justice Indira Banerjee for a hearing.

Source: Bar & Bench, Live Law.

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