Forcing Estranged Couples To Cohabit: Law Can't Mend A Marriage

Section 9 of the Hindu Marriage Act, 1955 continues to empower the courts in our country to force estranged couples into resuming marital relationships. However, in India over the last few decades, people’s perspective on the institution of matrimony has undergone a huge change. We have been increasingly questioning its basis. Also how it wrongfully advocates, social intervention to make a marriage work, in the name of sanctity of the institution. The focus is fast shifting from maintaining harmony in a household for the sake of everyone from neighbours to parents to kids, to individual happiness. Which is why this provision in the HMA feels so outdated in 2019.

KEY TAKEAWAYS

• Two PIL petitioners have challenged Section 9 of the Hindu Marriage Act.
• This provision empowers courts in India to force an estranged couple to cohabit and resume marital relations.
• While the provision is gender neutral, it is used by men to bring estranged wives home against their wishes.
• Compulsory restitution can't be an ideal way to mend a broken relationship.

The focus is fast shifting from maintaining harmony in a household to individual happiness.

According to The Times Of India, two PIL petitioners have challenged this provision in HMA, that allows one spouse to opt for legal intervention seeking restitution of conjugal rights, against the spouse living separately. The petitioners said that though Section 9 was gender neutral, in practice it was mostly used by men to get decrees from the courts to force their wives to resume a conjugal relationship with them in the matrimonial home. This was a direct violation of women’s rights, who wanted a way out of the relationship.

Numerous women are trapped in unhappy and violent marriages across our country, which are often arranged by their families, with or without their approval. Such unhappy marriages are not only emotionally and physically draining, but there is also no way out of them for women. Sometimes they do manage to convince their parents to stand by them, are financially independent and emotionally strong to bear all the social backlash which would come their way, and walk out. But how do you escape a bad relationship, when a court orders you to stay in it? After all, going against the word of the court comes with harsh consequences. Like confiscation of personal property in this case. But if the law is gender neutral, why are women more susceptible to it than men?

A court order for compulsory restitution isn’t the ideal way to mend a broken relationship.

This is because male entitlement gives husbands a sense of ownership over their wives. They think they have acquired them from their parents, and thus they have a right to their bodies and their existence. When a wife walks out on her husband, it becomes a matter of ego for him. He hasn't been conditioned to accept rejection from a woman. But it's not just the husbands, our entire patriarchal set up is intimidated of the consequences of giving women a way out of marriages. The dissent could lead to a collapse of hierarchies in patriarchy, thus it always goads men to keep their women in place. Use whatever means you can, to make sure that women never forget where they actually belong.

But even when you look at this provision outside of the context of skewered gender dynamics in our society, it makes no sense today. A court order for compulsory restitution isn’t the ideal way to mend a broken relationship. It only adds more strain to a fractured relationship, where one spouse feels trapped with no way out of an unwanted alliance. Forcing your spouse to come and live back with you will only make them more resentful towards you. A court order cannot smooth out all the ruffles in your crumbling marriage. So what's the point?

Sometimes, it is better to let go, then hold on to shards of a broken relationship, because it’ll only end up hurting you more.

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Yamini Pustake Bhalerao is a writer with the SheThePeople team, in the Opinions section. The views expressed are the author’s own.