Constitutional Law

Puttaswamy and the Unconstitutionality of the Restitution Remedy

Kartik Kalra


This piece argues that the remedy of restitution of conjugal rights is unconstitutional on grounds of its absolute opposition to principles of human dignity, bodily autonomy and decisional privacy. The present availability of the remedy alongside the marital rape exception is a vivid manifestation of the public-private divide, and has the effect of depriving marital partners of their agency within the marital institution. It considers the enunciation of the conceptual underpinnings of decisional privacy discerned in Puttaswamy and applied in Navtej Singh Johar along with the remedy’s fundamentally patriarchal underpinnings, and attempts to establish its unconstitutionality.

Content and Implications of the Restitution Remedy

While the remedy for restitution of conjugal rights is omnipresent in personal laws, Section 9 of the Hindu Marriage Act has been the primary subject of prior constitutional challenges. The remedy mandates that a spouse unwilling to cohabit with their partner can be legitimately recalled to the marital home by a court’s decree. In circumstances of refusal to cohabit and spousal disobedience to the decree, the refusing spouse’s property can be attached.

The underpinnings of the restitution remedy are highly gendered, with its classic English deployment being the forced recall of an unwilling wife to the marital home. The doctrine of coverture constituted its philosophical justification, meaning that a forced recall to the marital home is a logical corollary to the wife’s want of an independent social or legal existence. The implications of the remedy are even more gendered, for it functions conterminously with the legal sanction to marital rape. The immediate consequence of a decree of restitution could be forced intercourse carrying legal sanction, a reality that has been insignificant for the Courts in Harvinder Kaur and Saroj Rani. We examine the same in this piece.

Competing Notions of Privacy and the Substance of the Constitutional Right to Privacy

In Puttaswamy, the Court examines various perspectives to privacy (¶248) before summarizing the substance of privacy emanating from the Constitution (¶298). Privacy, it holds, can be bodily, spatial, communicational, institutional or informational, placing heavy reliance on this piece. The conflicting bases of privacy, however, are found in decisional privacy on one end and spatial or institutional on another. Spatial privacy can be considered a direct corollary of the public-private divide, where the private becomes off limits for the law. It identifies the door of the household to be the law’s last mile, post which its application ceases. Institutional privacy means that privacy is exercised via specific social institutions, such as marriage. It considers the parties to the marriage to be surrendering their privacy entitlements to the marital institution, thereby depriving the parties of any personal privacy rights within the marriage. In contrast with these two conceptions, decisional privacy recognizes a person’s liberty to make autonomous choices on matters central to their personal dignity, destiny and bodily integrity, irrespective of occupation of physical spaces or subscription to social institutions.

Puttaswamy holds that the principle of decisional privacy is found within the Constitution, for “privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life” (¶323). The Court does not create a super-sovereign authority from the household that becomes off limits for the law, and neither does it regard the marital institution as the sole mode of exercising privacy. The centrality accorded to the individual is notable, for even if privacy is being exercised within the marital institution, the sole actor entitled to exercise such privacy is the individual. Navtej also adopts the same conception of decisional privacy, one that has a greater direct implication for the constitutional challenge to restitution. Holding autonomy to be individualistic, it says “under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice” (¶161). The consequences of this observation, quoted in the constitutional challenge to restitution, are of extreme significance. An individual’s subscription to the marital institution would not ipso facto disqualify them from intra-institutional autonomy, and the choice to engage and withdraw from conjugal relations would still be a matter of choice. Marriage, therefore, cannot be considered a one-time consent to the permanent performance of conjugal rights.

In the following section, we shall buttress Puttaswamy’s reasoning and establish that decisional privacy is the sole conception of privacy that is constitutionally compatible, and neither spatial nor institutional privacy enjoy a constitutional foregrounding.

Constitutional Archaeology and Decisional Privacy

Puttaswamy holds that privacy is a part of the right to life, that too a conception of privacy that accords centrality to individual autonomy (¶323), and Navtej holds that autonomy is solely individualistic (¶161). While reading unenumerated rights into constitutional provisions, James Fleming mandates the exercise of constitutional archaeology, which entails “digging up the shards” of a country’s constitutional culture and identifying the patterns visible across various “unenumerated” rights that have been read into broad constitutional terms like “personal liberty” or “equality”. Robert Jackson J. called these terms “majestic generalities”, for the formulation of doctrine around them is largely unconstrained from their pithy postulation. Consider the following shards of Indian constitutional culture that, albeit unenumerated, emanate from our Constitution’s majestic generalities: right to reproductive autonomy (Suchita Srivastava v. Chandigarh Administration ¶22), right to choose one’s sexual orientation (Navtej Singh Johar v. Union of India  ¶244, 245), right to choose any life partner (Shakti Vahini v. Union of India, ¶43), right to decide whether to beget children (Inspector (Mahila) Ravina v. Union of India, ¶9), right against involuntary administration of narco-analysis (Selvi v. State of Karnataka, ¶244,), right not to be deprived of liberty without a just, fair and reasonable procedure (Maneka Gandhi v. Union Of India ¶48), right to have a speedy trial to attribute or absolve guilt (Hussainara Khatoon v. Home Secretary, State Of Bihar, ¶5) and also the autonomy to enter religious places as a facet of one’s dignity (Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, ¶219).

Fleming asks us to ponder how these shards of constitutional culture interact and form a coherent structure. Across these wide-ranging unenumerated rights, an alignment emerges as we identify some common characteristics. One would arrive at the conclusion that the rubrics of autonomy, personal liberty and privacy serve as the edifice for the construction of these rights, with the principle of autonomy principle taking centrality. The creation of a sovereign from within the household or the abandonment of individual agency and autonomy due to membership of the marital institution is undoubtedly anathema to the progressive privacy jurisprudence identified above, much of which is reaffirmed in Puttaswamy.

Unambiguous Rules and Adverse Consequences: Precedent on Restitution

The constitutionality of restitution was first challenged before the Andhra High Court in T. Sareetha, where Choudhary J. held it unconstitutional for the remedy’s barbarous nature and its opposition to values of human dignity and privacy. He acknowledged that marriage is fundamentally patriarchal, with the invocation of restitution being manifold greater by men who wish to recall unwilling wives to the marital home as opposed to women who desire the return of husbands undertaking desertion. Compelled cohabitation, he reasons, would lead to compelled intercourse. Because of the autonomy-adverse and constitutionally undesirable consequences of the restitution decree, he held the section unconstitutional.

The next challenge was before the Delhi High Court in Harvinder, where Rohatgi J. took an avowedly contrary stand, even saying that a “disproportionate emphasis on sex, almost bordering on obsession, has coloured the view” of Choudhary J. in Sareetha. He takes pains to emphasize that the Court cannot enforce sexual intercourse, and a consideration of consequences of the restitution decree is immaterial for the remedy’s constitutional challenge. This view has been reaffirmed by the Supreme Court in Saroj Rani (¶11). This exemplifies the two distinct paths adopted by Sareetha on one side and Harvinder and Saroj Rani on the other: even though the law itself doesn’t enforce sexual intercourse, a direct consequence of restitution could be forced intercourse that has legal sanction. Choudhary J. evaluates the inequality entrenched within the patriarchal structure of marriage and concludes that “compelled cohabitation would, in all likelihood, lead to compelled intercourse” (¶30). He quotes Anne Saheb v. Tara Bai, a restitution case where the woman was non-consensually mandated to return to the marital home. He says “what could have happened to Tarabai thereafter may well be left to the reader’s imagination” (¶17). Since a restitution decree effectively denies a woman her bodily autonomy and decisional privacy, the constitutionality of the remedy must be adjudged in light of the consequences emerging therefrom.

Sareetha considers direct adverse consequences of the restitution decree whereas Harvinder fills reams of paper arguing that it isn’t the Court that’s enforcing sexual intercourse. The latter argument completely ignores that it is the status of cohabitation being conferred by the Court that legitimizes forced intercourse. Forced intercourse can be a direct consequence of the restitution decree.

Why is it, however, that the state is so immensely devoted towards securing restitution, even when its principles and consequences are opposed to individual autonomy and agency? What interests the state in the unreasoned continuation of compelled non-consensual cohabitation and subsequently, non-consensual intercourse?

Why does the State Wish to Secure Restitution?

Both Harvinder and Saroj Rani converge in the position that the prevention of marital disintegration is a legitimate activity that is secured by restitution, and the state must actively guide it. Harvinder goes so far as to accept the State’s argument that if Sareetha’s exposition of decisional privacy and bodily autonomy were to prevail, “it will undermine the foundations of our social organisation. The consequences…are so grave as to destroy the very foundation of conjugal life” (¶39).

A pedestalization of the “foundations of our social organizations” accompanied by a relegation of decisional autonomy is incompatible with constitutional principles, for decisional privacy necessarily rejects the act of according centrality to a patriarchal status quo over individual autonomy. Further, scholars have argued that it is the state’s nature as a patriarchal institution that incentivises it to sustain the patriarchal institution of marriage. Miliband, for example, holds that “the state system…has as its main purpose the defence, maintenance and predominance of a particular class”, with others identifying this class to meanpatriarchy, the power of men over women, and the divisions between them.” Gail Omvedt fleshes this idea in the Indian context by viewing the interactions of the state machinery, caste, class and gender as creating a superstructure that considers patriarchy essential for its survival.


Puttaswamy’s enunciation of privacy has been widely regarded as a vindication for Sareetha, for it serves as a confirmation of Choudhary J.’s four-decade old position on human dignity and individual autonomy being the edifice of the constitutional right to privacy. The restitution remedy confers upon the state the power to decide upon the most intimate questions of one’s life, those of cohabitation and intercourse. It rejects one’s bodily integrity and reproductive autonomy, and falls foul of the conceptual underpinnings of decisional privacy enunciated in Puttaswamy. Puttaswamy concertedly undermines Saroj Rani and Harvinder in holding that decisional privacy necessarily possesses centrality, and also recognizes the need to “take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty” (¶246). It also indicates that the domains of public and private are of a constitutive origin: they are deliberately created by the patriarchal superstructure to insulate spaces from the application of constitutional law.

The post-Puttaswamy challenge to restitution is presently pending before the Supreme Court, with the 2017 judgement having paved the way for a likely successful constitutional challenge.

Kartik Kalra is a current undergraduate student pursuing a B.A., LL.B. (Hons.) at the National Law School of India University (NLSIU), Bengaluru.