1. The availability of a remedy is not sufficient

1.      Though,the
remedy for restitution of conjugal rights is available to both spouses, yet the
inherent differences between a male and a female can’t be ignored while
examining the remedy in socio-legal perspective. The availability of a remedy
is not sufficient for its use in the society. Further,the implication of the
remedy on the spouses must be kept in mind we must not forget that majority of
the women still enjoy lower social and economic status in the society.Thus,
there is only apparent equality between man and woman. Due to ignorance,
financial dependency and other factors, the benefits of various laws and
remedies are generally reaped by male in the man-dominated society. Thus, there
is only an apparent quality as the wife is placed in a disadvantageous position
in majority of the cases.

 

2.     
The remedy was available
to both the spouses, then also it violative of Article 14, i.e, the fundamental
right to equality, enshrined in the Indian Constitution because the equality
provided in the Indian Constitution is not only that of equality in law, but
also of equality in reality1.
Equality does not mean physical equality between husband and wife, but it means
equality of thought, action and self-realisation which, is sadly not provided
in this remedy because, practically, this remedy is highly biased towards the
husbands and provides a powerful tool to them. Moreover, it is anachronistic
for educated women to be forced by State power to go and live in a place, where
from they have withdrawn. The
requirements of equal protection of laws contained in Article 14 of the
Constitution are not met with that apparent though majestic equality at which
Anatole France mocked, Our Supreme Court declared that: “Bare equality of
treatment regardless of the inequality of realities is neither justice nor
homage to the constitutional principle.”2

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As according to our
typical hindu culture, it is correctly observed in T. Sareetha v. T. Venkata
Subbiah3that
. “By enforcing a decree for Restitution of Conjugal Rights, the life
pattern of the wife is likely to be altered irretrievably whereas the husband
can remain almost as it was before. This is so because it is the wife who has
to beget  and bear a child, this
practical taut inevitable consequence of the enforcement of this remedy
cripples the wife’s future plan of life and prevents her from using that self
destructive remedy. Thus, the use of remedy for restitution of conjugal rights
in reality

1 . Match Works v. Asst.
Collector AIR 1974 SC 497 at 503)

2 Ibid.

3 AIR
1983 AP 35 

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