Restitution or Repression? A Feminist Critique on Marital Enforcement Laws.

Abstract

The Doctrine of Restitution of Conjugal Rights (RCR), which is enshrined under Section 9 of the Hindu Marriage Act, 1955 (HMA), empowers the court to order a spouse to return to the company of the other spouse. This is done ostensibly to preserve the sanctity of marriage and the stability of the family unit, but it has now become a source of controversy. Still, it functions as a coercive means that undermines individual autonomy, disproportionately impacting women who want to seek separation due to abuse, neglect, or personal choice. By compounding cohabitation, RCR risks legitimizing marital rape, emotional coercion, and psychological harm, which convert the family from ideally a site of love and consent to a site of repression. This paper critically examines RCR through a family and feminist perspective, arguing that it erodes the ethical foundations of marriage as a consensual partnership. The objective of this paper is to trace the colonial origins of the doctrine, evaluate its impact on marriage and family dynamics, analyze its compatibility with the constitutional principle such as principle of dignity, privacy, and equality, and to also to consider comparative experiences such as the abolition of RCR in the UK. The rationale behind choosing this topic lies in the contradiction between family law, which focus on preserving the sanctity of marriage at any cost and constitutional law, which emphasize on individual’s freedom and autonomy. This paper tries to answer the research question that does RCR truly protect family harmony or does it destabilize it by prioritizing an institution over the well-being of an individual? It examines the important case laws and places them in the context of modern constitutional jurisprudence on dignity, privacy, and equality under articles 14, 19, and 21 of the Constitution. It therefore finally recommends abolishing RCR and urges family law reforms to reflect consent, equality, and dignity