The sacrosanct view that a Hindu marriage is a sacred and permanent union under classical Hindu law has frequently led to gender-based violence, manifesting through both visible and invisible signs of oppression against Hindu women. Section 9 of the HMA, providing the remedy of restitution of conjugal rights (RCR), is central to this controversy. This provision, by mandating marital cohabitation, effectively transfers critical decisions of women’s sexual and reproductive autonomy to courts, often coercing them into non-consensual sexual relations and infringing their basic human dignity. Aggravating this issue is India’s failure to recognize marital rape as a criminal offence. This article critically examines the consequences of RCR from historical, sociological, and human rights standpoints. While considering its detrimental impact on the sexual autonomy and bodily integrity of women, this article advocates for the abolition of RCR from Indian statute books as it contravenes Indian constitutional principles and her commitments under the international human rights instruments.

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Balancing Tradition and Gender Justice: Revisiting Section 9 of the Hindu Marriage Act and Its Impact on Women’s Autonomy and Constitutional Rights

  • Taniya Malik

摘要

The sacrosanct view that a Hindu marriage is a sacred and permanent union under classical Hindu law has frequently led to gender-based violence, manifesting through both visible and invisible signs of oppression against Hindu women. Section 9 of the HMA, providing the remedy of restitution of conjugal rights (RCR), is central to this controversy. This provision, by mandating marital cohabitation, effectively transfers critical decisions of women’s sexual and reproductive autonomy to courts, often coercing them into non-consensual sexual relations and infringing their basic human dignity. Aggravating this issue is India’s failure to recognize marital rape as a criminal offence. This article critically examines the consequences of RCR from historical, sociological, and human rights standpoints. While considering its detrimental impact on the sexual autonomy and bodily integrity of women, this article advocates for the abolition of RCR from Indian statute books as it contravenes Indian constitutional principles and her commitments under the international human rights instruments.