SHOULD RESTITUTION OF CONJUGAL RIGHTS BE REMOVED?
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DOI:
https://doi.org/10.55662/SALRJ.2023.902Abstract
In India, the societal opinion on marriage has historically been very conservative; divorce is considered to be taboo. Being in line with such views, personal laws are shaped in India in such a way where judges are directed to be very paternalistic; to try their best at reconciliation first. This is clearly mentioned in both, the Hindu Marriage Act and the Special Marriage Act . In addition, similar provisions relating to the restitution of conjugal rights exist throughout various personal laws . Jani & Anr. v. Mohammed Khan and Monshee Bazloor v. Mohammed Khan are some examples of Muslim personal law providing such a matrimonial relief of restoration of cohabitation. Owing to this deeply rooted relief in Indian law, there are a majority of cases which have come to Court requesting this decree to be passed. A majority of these cases have been ruled in favour of the party petitioning for restitution of conjugal rights. However, keeping in mind the changing times and the recent debate on the right to privacy , the law must adapt to the new sentiments of its citizens. Numerous petitions have come about, arguing that such a law is archaic and in violation of the constitutional right to privacy, the most recent one in front of the Supreme Court being Ojaswa Pathak v. Union of India (2019-date). This topic has become the basis of a debate among Courts. Therefore I explore the question, ‘Should restitution of conjugal rights be retained or removed?’
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