Author
Prof Shuvro Prosun Sarker
Organisation/Institution
RAJIV GANDHI SCHOOL OF IP LAW, IIT KHARAGPUR
Country
INDIA
Panel
Family Law
Title
Deconstructing the Restitution of Conjugal Rights: A Comparative Study of Judicial Attitude in South Asian Countries
Abstract
Abstract The institution of marriage, traditionally perceived as a sacramental union grounded in social order and moral obligation. It has long operated within a framework that subordinates individual will to collective expectations. Indeed, the primary purpose of Restitution of Conjugal Rights (RCR) is to prevent the unnecessary dissolution of a marriage. However, according to customary practice, the bride is expected to reside with the bridegroom after marriage. Women are thus primarily expected to enter into conjugal companionship with their husbands, even in the face of conflict. Thus, the remedy gradually shifted in judicial mandate to allow for resumption of cohabitation. The study interrogates the legal doctrine RCR as a mechanism through which the state intrudes into the intimate sphere of marriage, compelling cohabitation and thereby undermining personal autonomy. By adopting a case study approach, the research examines cases decided by the Indian Judiciary over the past decade to investigate how courts in India have addressed the tension between marital duties and individual autonomy in RCR cases. Drawing on a comparative legal approach to South Asian countries, the study reveals that while some jurisdictions have evolved toward recognising autonomy as a cornerstone of gender quality, others continue to preserve coercive remnants of colonial matrimonial law. The paper argues that the legitimacy of marriage in a modern democratic society should rest not on state enforcement of conjugal obligations, rather on voluntary partnership grounded in mutual respect and freedom of choice. Ultimately, it proposes a reconceptualize of RCR while affirming the rights to live and to live apart as essential aspects of an individual's life. Keywords: Restitution of conjugal rights, Autonomy, Judiciary, Women, Gender Justice, South Asian Countries
Biography
Dr. Sarker holds LL.M. and Ph.D. from the National University of Juridical Sciences, Kolkata, and B.A.LL.B. (5 Years Course) from University of Calcutta. Before joining the Institute, he served the Maharashtra National Law University Nagpur, National University of Juridical Sciences Kolkata, KIIT Law School and Mahanirban Calcutta Research Group in teaching and research positions. He taught Public International Law, International Refugee Law, International Humanitarian Law, International Human Rights Law, Constitutional Law, Property Laws, and Clinical Courses to undergraduate students, and Law and Justice in a Globalized World and Limited Government and Security Legislations to post-graduate students. He worked on forced migration, humanitarian situation in Indo-Bangladesh borderland, right to information, excise laws, laws preventing witch hunting and black magic, forest management in West Bengal, and clinical and continuing legal education, etc. He also has deep interest in exploring unenumerated fundamental and constitutional rights (post Puttaswamy Judgment), ideas associated with transformative constitutionalism, personal laws and non-discrimination, human rights of underprivileged sections of Indian society, human rights and criminal justice administration, discrimination based on genetic information, reform of legal education, intelligence and security issues of India, radicalization and extremism in a postcolonial world, imperialism and history of international law, colonization and enforced laws, laws of war and technology, refugee protection and management, etc.
