CONJUGAL RIGHTS

1. Context

2. Conjugal Rights

• Conjugal rights are rights conferred by marriage, i.e. the right of one spouse to the society of the other spouse.
• These rights are recognized by the law, both in personal laws dealing with marriage, divorce, and so on, and in criminal law mandating the payment of maintenance and alimony to a spouse.
• Section 9 of the Hindu Marriage Act of 1955 and section 22 of the Special Marriage Act of 1954 allow a husband or wife to file a complaint with the local district court, claiming that the other spouse has "withdrawn" from the marriage without "reasonable cause".
• The concept of the restitution of conjugal rights is codified in the Hindu personal law, but its origins are colonial.
• The provision for the restitution of conjugal rights originated in Jewish law and spread through British Rule to India and other common-law countries.
• Because wives were considered personal possessions of their husbands under British law, they were not allowed to leave their husbands.
• Similar laws can be found in Muslim Personal law and the Divorce Act of 1869, which govern Christian family law.
  In addition, the law on the restitution of conjugal rights was repealed in the United Kingdom in 1970.

3. Challenged Provision

• Section 9 of the Hindu Marriage Act of 1955, which addresses restitution of Conjugal rights, states When either the husband or the wife has withdrawn from the other's society without reasonable cause, the aggrieved party may file a petition with the district court.
• For restitution of conjugal rights, the court, if satisfied that the statements stated in such a petition are true and that there is no legal reason why the application should not be granted, may order restitution of conjugal rights accordingly.

4. Judicial Views on Conjugal Rights

• In the case of Sunil Batra vs Delhi Administration (1979, SC), Justice Iyer observed that “visit to prisoners by family and friends are solace in isolation: and only a dehumanized system can derive vicarious delight in depriving prison inmates of this humane amenity.”
• In the case of Jasvir Singh vs the State of Punjab, a couple convicted of murder and on death row made a petition to the court to enforce their right to procreate. The primary question before the law was whether the right to conjugality and procreation is a part of the right to life. The High Court held that this right to conjugality is available to prisoners under Article 21, subject to restrictions. 
• In the case of Maharaj vs State (2022), the Madras HC while considering the question of whether conjugal rights form part of the right to life and personal liberty guaranteed by Article 21, observed that there have to be differential standards in the enforcement of Article 21 for law abiders and law violators. The Court observed that even though conjugal visits could not be held as a fundamental right, the prisoner would still be eligible to avail leave for conjugal visits if there are ‘extraordinary reasons’ such as ‘infertility treatments.’

5. Punjab Adopted model

• The State guidelines clarify that conjugal visits are a matter of privilege rather than a right. It has been notified that the average time for conjugal visits shall be two hours, allowed once every two months.
• The visiting spouse will have to furnish proof of marriage and medical certificates declaring that he or she is free from HIV or any other sexually transmitted disease, COVID-19, or any other infectious disease. 
• Moreover, such a facility will not be extended to high-risk prisoners, terrorists, child abuse and sexual offenders, death row convicts, prisoners who suffer from HIV, etc.

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