The Supreme Court on Tuesday sought assistance of Attorney General KK Venugopal on a PIL against the law that gives power to courts to force a separated couple to stay together through decree for Restitution of Conjugal Rights.
A three-judge bench of Justice Rohinton Fali Nariman, Justice Hemant Gupta and Justice V Ramasubramanian asked Attorney General to assist the court on the issue and also asked the central government to respond on the plea within eight weeks.
In March last year, the top court had asked the Ministry of Law and Justice on the plea, but the reply is yet to be filed.
The two-judge bench had also said that a three-judge bench will hear the case.
The PIL filed by two law students of Gujarat National Law University, Gandhinagar, challenged the validity of Section 9 of the Hindu Marriage Act, 1955, Section 22 of the Special Marriage Act, 1954 and Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908. These provisions provide the statutory scheme for the Restitution of Conjugal Rights.
The PIL filed by Ojaswa Pathak and Mayank Gupta said under the legal scheme in India, a spouse is "entitled to a decree directing his other spouse to cohabit and take part in sexual intercourse. He/she is also entitled to coercive measures in the form of attachment of property in case the spouses wilfully disobeys the decree of restitution."
The petitioners submit that the "legislative package" providing for the Restitution of Conjugal Rights is "unconstitutional" and against the fundamental rights.
A two-judge bench in 1984 upheld these provision while considering the scheme for restitution of conjugal rights "as an aid to the prevention of break-up of marriage".
The plea has said that the personal autonomy and dignity that are guaranteed under the Constitution cannot be sacrificed at the altar of family life.
"The Constitution guarantees to every individual the right to be left alone - even within the framework of a family. Any provision which forces an individual to have sexual relations or even cohabit a home without her will is violative of the right to privacy, individual autonomy and dignity that are guaranteed by the Constitution," the plea stated.
It added that the "society is changing into one where the private interest of sexual autonomy, dignity and happiness of an individual is put before concerns like societal morality or family life. Thus, there exists no compelling interest for the state to interfere in matters related to conjugal rights.
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