12. In R. Barnet London Borough council (1981) 2 WLR 86, the divisional Court ruled that the expression "ordinary residence" embodied a number of factors such as time, intention and continuity each of which might carry a different weight according to the context in which and the purpose for which the expression was used in a particular statute.
13. In the varying circumstances of a concrete case, no general principle of law can decide what relative weight should be given to these various factors of time, intention and continuity. The question therefore whether the wife and husband last resided together in a particular place, can only be decided on the particular evaluation of these changing and differing factors and not by folllowing any mechanical rule of thumb. The various decisions cited by the learned counsel cannot, therefore be taken as alying down any proposition of law. They can only be taken at best as laying down propositions of good sense.
14. In Qualcast wolverhampton Ltd. V. Hayness (1959) AC 743 Lord Denning chided the country Court for treating the decisions of th House of Lords on hte question whether the employer was guilty of negligence or not in particular cases as laying down any proposition of law binding upon a country Court.
15. In that case, an experienced moulder who injured himself in the course of his employment sued his employer for negligence. Although the country Court found as a fact that the moulder was not wearing protective spats that were made available by the employer and which would have prevented the injury held thinking that it was bound by the authoritative decisions of the superior courts that the employer was guilty of negligence, for their failure to administer warning to the experienced moulder. The House of lords reversed that judgment holding that the question what did reasonable care demand of the employers in that particular case was not a question of law but a question of fact on which no decision of the superior courts can Act as a precedential authority Lord Denning observed in that case:
"The question that did arise was this: what did reasonable care demand of the employers in this particulr case? That is not a question of law at all but a question of fact. To solve it the Tribunal of fact - be it Judge or jury - can take into account any proposition of good sense that is relevant in the circumstances, but it must beware not to treat it as a proposition of law. I may perhaps draw an analogy from the Highway code. It contains many propositions of good sense which may be taken into account in considering whether reasonable care has been taken but it would be a mistake to elevate them into propositions of law....................................................
I can well see how it came about that they country Court Judge made this mistake. He was presented with a number of cases in which judges of the High Court had given reasons for coming to their conclusions of fact. And those reasons seemed to him to be so expressed as to be rulings in point of law; whereas they were in truth nothing more than propositions of good sense. This is not the first time this sort of thing has happebed. Take accidents on the road, I remember well that in several cases scrutton L.J. said that"if a person rides in the dark he must ride at such a pace that he can pull up within the limits of "his vision" (Baker v. E. Longhurst & sons ltd. (1933) 2 KB 461, 468. That was treated as aproposition of law until the Court of appeal firmly ruled that it was not (Tidy v. Battman (1934) 1 KB 319). Morris v. Luton corporation - (1946) KB 114). So also with accidents in factories. I myself once said that an employer must, by his foreman, "do his best to "keep (the men) up to the mark" (Clifford v. Charies H. Challen & son Ltd) (1951) 1 KB 495 Someone shortly afterwards sought to treat me as having laid down a new proposition of law, but the Court of Appeal I am glad to say, corrected the error (Woods v. Durable suites Ltd. (1953) 1 WLR 857). Such cases all serve to bear out the warning which has been given in this House before ......"We sought "to beware of allowing tests or guides which have been suggested" by the Court in one set of circumstances, or in one class of "cases, to be applied to other surroundings " and thus by degrees to turn that which is at bottom a question of fact into a proposition of law that is what happened in the cases under the workmen's compensation Act, and it led to a wagon load of "cases", See harris v. Associated portland cement Manufacturers LTd. (1939) AC 71 by Lord Atkin. Let not the same thing happen to the common law, lest we be crushed under the weight of our own reports".
The question which is the place where the husband and wife last resided together is, in my opinion not being capable of being treated as a question of law, I consider the matter from an overall view of the facts.
16. In this case, the finding of fact is that the parties had lived for six months at cuddapah immediately after their marriage at Tirupathi. The place of the permanent residence of venkata subbaiah is cuddapah, Venkata subbaiah has agricultural lands there. Presumably he conducts agricultural operations from there which would require his constant presence and attention Unless sareetha suceeds in showing that she never lived with venkata subbaiah at cuddapah, the claim of cuddapah to be the place of last residence in this case, cannot be rejected. It is true that sareetha say that she never lived with venkata subbaiah at cuddapah, but this point was never made good by her. She never argued this point before the Court below nor is that plea proved to its satisfaction. The question whether she lived with venkata subbaiah at cuddapah or not is a pure question of fact. The finding of the lower Court on such a question of fact cannot be distribed by a revisional Court. I am thus left with no option except to accept that finding Accepting the finding of the ocurt below that sareetha and venkata subbaiah lived together at cuddapah for about a period of six months after their marriage at Tirupathi I hold that cuddapah was the place where the parties had last resided together and the Madras residence is ineffectual to displace that cuddapah residence and that accordingly the Court of the subordinate Judge. Cuddapah, has jurisdiction to try the petition filed by venkata subbaiah for restitution of conjugal rights.
17. This leads me to the consideration of the other half of this case which raises an important constitutional question. Sareetha in her petition dated 31-8-1981 of which notice from this Court had been duly given to and served upon the Attorney General Of India,New Delhi raised for the first time a question of constitutional validity of section 9 of the Hindu Marriage Act. Through that petition, sareetha claimed that section 9 of the Act, "is liable to be struck down as violative of the fundamental rights in part III of the Constitution of India, more particularly articles 14, 19 and 21 inasmuch as the statutory relief under the said provision, namely restitution of conjugal rights offends the guarantee to life, personal liberty and human dignity and decency'. As the above contention of sareetha involves the question of constitutional validity of section 9 of the Act, authorising grant of curial relief of restitution of conjugal rights to a Hindu suitor, I read section 9 of the Act in full and the relevant parts of its allied procedural provisions contained in order 21 Rules 32 and 33 of the civil procedure code.
Section 9: Restitution of conjugal rights:
"When either the husband or the wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply by petition to the district Court for restitution of conjugal rights and the Court, on being satisfied the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation: Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society".
Order 21 Rule 32 of C.P.c. Decree for specific performance for restitution of conjugal rights,or for an injunction:
"(1) where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced (in the case of a decree for restitution of conjugal rights by the attachment of his property, or in the case of a decree for the specific perofrmance of a contract, or for an injunction) by his detention in the civil prison, or by the attachment of his property, or by both.
(3) Where any attachment under subrule (1) or sub-rule (2) has remained in force for (six Months) if the Judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.
(4) Where the Judgment-debtor has obeyed the decree, and paid all costs of executing the same which he is bound to pay, or where, at the end of (six months) from the date of the attachment on application to have the property sold has been made or if made has been refused, the attachment shall cease.
Rule 33. Discretion of ocurt in executing decrees for restitution of conjugal rights:
(1) Notwithstanding anything in R. 32, the Court either at the time of passing a decree (against a husband) for the restitution of conjugal rights or at any time afterwards may order that the decree (shall be executed in the manner provided in this rule).
(2) Where the Court has made an order under sub-rule (1), it may order that in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payment as may be just and if it thinks fit, require that the judgment -debtor shall, to its satisfaction secure to the decree-holder such periodical payment.
(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid and again revive the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money".
A combined residing of the above substantive and procedural provisions relating to the grant of relief of destitution of conjugal rights by Court makes it clear that the decree for restitution of conjugal rights contemplated to the granted under section 9 of the Act is intended by hte statutory law to be enforced in species under O. 21 Rr. 32 and 33 by applying financial sanctions against the disobeying party. Additionally always a Court can enforce its decree through its contempt powers. The Judicial committee of the privy council in Moonshed Buzloo Rhueem v. Shumsoon Nissa Begum, (1867) 11 Moo Ind App 551, held that a suit for restitution of conjugal rights filed by a Muslim husband was rightly filed as a suit for specific persormance it is on the same lines that order 21 Rule 32 of the code of civil procedure speaks of a decree granted for restriction of conjugal rights as a decree of specific performance of restitution of conjugal rights. Conjugal rights connote two ideas. (A) "the right which husband and wife have to each other's society and (b) "marital intercourse". (See the dictionary of English Law by Earl Jowitt P. 453) In Wily v. Wily (1918) P. 1 "an offer by the husband to live under the same proof with his wife, each party being free from molestation by the other was held not an offer to matrimonial cohabitation". (See N. R. Raghavachariar's Hindu Law, 7th Edn. Vol II p. 980. Gupt's Hindu Law of Marriage P. 181 and derrett's Introduction to Modern Hindu Law para 308). In other words, sexual cohabitation is an inseparable ingredient of a decree for restitution of conjugal rights. It follows, therefore that a decree for restitution of conjugal rights passed by a civil Court extends not only to the grant of relief to the decree holder to the company of the other spouse, but also embraces the right to have marital intercourse of the enforcement of such a decree are firstly to transfer the choice to have or not to have marital intercourse to the state from the concerned individual and secondly to surrender the choice of the individual to allow or not to allow one's body to be used as a vehicle for another human being's creation to the state. Relief of restitution of conjugal rights fraught with such serious consequences to the concerned, individual were granted under section 9 of the Act enables the decreeholder through application of financial sanctions provided by order 21 Rules 32 and 33 of C.P.C. to have sexual cohabitation with an unwilling party even by imprisonment in a civil prison. Now compliance of the unwilling party to such a decree is sought to be procured, by applying financial sanctions by attachment and sale of the property of the recalcitrant party. But the purpose of a decree for restitution of conjugal rights in the past as it is in the present remains the saem which is to coerce through judicial process the unwilling party to have sex against that person's consent and freewill with the decree-holder. There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to hte decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person The uninhibited tragedy involved in granting a decree for restitution of conjugal rights is well illustrated by Anna saheb v. Tara Bai . In that case, Division Bench of the madhya pradesh High Court decreed the husband's suit for restitution of conjugal rights observing ":but if the husband is not guilty of misconduct, a petition cannot be dismissed merely because the wife does not like her husband or does not want to live with him............." What could have happened to Tarabai thereafter may well be left to the eader's imagination . According to law, anna saheb against her will.
18. It cannot be denied that among the few points that distinguish human existence from that of animals, sexual autonomy an individual enjoys to choose his or her partner to a sexual Act, is of primary importance. Sexual expression is so integral to one's personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship. The famous legal definition of marriage given by Lord penzance in Hyde v. Hyde (1866) LR IP & D 130 (Divorce Court), as a voluntary union between man and woman only highlights this aspect of free association. The ennobling quality of sex of which havelock ennobling quality of sex of which havelock Ellis wrote in his studies on the Psychology of sex ensues out of this freedom of choice. He wrote that "the man experiences the highest unfolding of his creative powers not through ascertism but through sexual happiness'. Bertrand Russell who ought to know declared that:
"I have sought love, first because it brings ecstasy-ecstasy so great that I would often have sacrificied all the rest of life for a few hours of this Joy'.
Forced sex, like all forced things is a denial of all joy yet in conceivable cases sex and statutorily be denied and even forbidden by law between specified groups of persons. But no positive Act of sex can be forced upon the unwilling persons, because nothing can conceivably be more degrading to human dignity and monstrous to human spirit than to subject a person by hte long arm of hte law to a positive sex Act. The restitution of cnjugal rights by force of arms can be more and can be no less than what late sri Sri, the greatest of the Modern Telugu poets , described in his poem "Kavitha as "Rakshasa Rathi". The Act of sex requires primarily the participation of mind the researches of the modern psychology had put to rest the cartesian dischotomy that has separated body and mind since the 17th centurt. The researches of Dr. George solomon of Univerity of california led him to conclude that "mind and body are inseparable" and that "the brain influences all sorts of physiological processes that were once thought not to be centrally regulated". And that "the brain influences all sorts of physiological processes that were once thought not to be centrally regulated". Sex Act therefore, can never be treated as a mere Act of body that can be ordered to obey by the state. The coercive Act of the state compelling sexual cohabitation therefore, must be regarded as a great constraint and torture imposed on the mind of the unwilling party. The life of a man or woman which the sovereign can commandeer through the coercive power of the state for performing an unwilling Act of sexual cohabitation cannot but be regarded as that of a human beast drained of all spirituality. In Russel v. Russel (1897) AC 395 Lord herschell long-ago noted the barbarity of this judicial remedy. He observed, I think the law of restitution of conjugal rights as administered in the courts did sometimes lead to results which I can only call bardarous".
19. There is even graver implications for the wife. An Act of foerced sex is no less potent than an Act of consensual sex in producing pregnancy and procereating offspring. The only difference lies in the fact that the latter is with her consent while the former is without her consent. In the process of making such a fateful choice as to when where and how if at all she should beget, bear deliver and rear a child, the wife consistent with her human dignity should never be excluded, conception and delivery of a child involves the most intimate use of her body. The marvel of creation takes place inside her body and the child that would be born is of her own flesh and blood. In a matter which is so intimately concerns her body and which is so vital for her life, a decree of restitution of conjugal rights totally excludes her.
20. The origin of this remedy for restitution of conjugal rights is not to be found in the British common law it is the medieval Ecclesiastical law of England which knows no matrimonial remedy of desertion that provided for this remedy which the Ecclesiastical courts and later ordinary courts enforced. But the British Law commission presided over by Mr. Justice scarman, (as he then was) recommended recently on 9-7-1969 the abolition of this uncivilized remedy of restitution of conjugal rights accepting that recommendation of the British Law commission the British parliament through section 20 of the Matrimonial proceedings and property Act, 1970 abolished the right to claim restitution of conjugal rights in the English courts. Section 20 of that Act reads thus:
"No person shall after the commencement of this Act be entitled to petition the High Court or any country Court for restitution of conjugal rights".
But our ancient Hindu system of Matrimonial law never recognised this institution of conjugal rights althought it fully upheld the duty of the wife to surrender to her husband. In other words, the ancient Hindu law treated the duty of the Hindu wife to abide by her husband only as an imperfectobligation incapable of being enforced against her will . It left the choice entirely to the free will of the wife. In Bai Jiva v. Narsingh Lalbhai (ILR 1927 Bom 264 at p. 268) a division Bench of the Bombay High Court judicially noticed this fact in the following words:
"Hindu law itself even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanction or procedure as compulsion by the courts to force her to return against her will".
21. This could have been only because of its realisation that in a matter so intimately concerned the wife or the husband the parties are better left alone without state interference. What could happen to the fate of a person in the position of Tara Bai (the respondent in the abovementioned madhya pradesh Appeal) who was forced to go back to her husband even after declaration of dislike and abhorrence towards her husband could have been well considered by the ancient Hindu Law. With the Brithish occupation of this country the whole legal position was drastically altered. The British indian courts wrongly equating the Ecclesiastical rule of this matrimonial remedy with equity good conscience and justice, thoughtlessly imported that rule into our country and blindly enforced it among the Hindus and the Muslims. Thus, the origin of this uncivilised remedy in our ancient country is only recent and is wholly illegitimate. Section 9 of the Act had merely aped the british and mechanically reenacted that legal provision of the British Ecclesiastical origin. The plain question that arises is whether our parliament now functioning under the constitutional constraints of the fundamental rights conceived and enacted for the preservations of human dignity and promotion of personal liberty, can legally impose sexual cohabitation between unwilling opposite sexual partners even if it be during the matrimony of the parties.
22. The Hindu marriage Act was enacted by our parliament in the year 1955 and the legislative competence of the parliament to enact section 9 of the Act under item 5 of the List III of the VII schedule to the Constitution is undoubted. But the question is whether that provision runs foul of part III of the Constitution. The petitioner attacks section 9 of the Act on the ground that granting of restitution of conjugal rights violates the petitioner's rights guaranteed under articles 14, 19 and 21 of part III of our constitioner attacks section 9 of the Act on hte ground that granting of restitution of conjugal rights violates the petitioner's rights guaranteed under articles 14, 19 and 21 of part III of our Constitution. Let us, therefore, first examine the content of Article 21 Article 21 of the Constitution guarantees right to life and personal liberty against the state action. Formulated in simple negative terms, its range of operation positively any person of his life or personal liberty except according to the procedure liberty except according to the procedure established by law is of far reaching dimensions and of overwhelming constitutional significance. Article 21 prevents the state from treting the human life as that of any other animal. It is now well established by the decisions of the Supreme Court that the word 'life' occuring in the above Article 21 has spiritual significance as the word life occuring in the famous 5th and 14th Amendments to the American Constitution does. In those constitutional provisions of the American Constitution the life is interpreted by Mr. Justice field in this dissenting judgment in Munn v. Illinois, (1877) 24 L Ed p. 17 to mean and signify "more than a person's right to lead animal or vegetative existence. Field J., said in the above munn's case "by the term life as here used something more is meant than mere animal existence". The contrast drawn by field J., emphasising the difference between existence of a free willing human and that of an unfree animal was accepted by our Supreme Court first in kharak singh v. State of U.P. and next in Govind v. State of M.P. transforming Article 21 of our Constitution into a charter for civilization In Kharak singh v. State of U.P. (supra) Rajagopala Ayyangar J., for the majority and subba Rao, J., for the concurring miniority accepted the above meaning and significance given to the word 'life' by observing that the expression life' used in that Article cannot be confined only to the taking away of life, that is causing death." Subbarao J., in the same case gave greater importance to the words "personal liberty", occuring in Article 21 of the Constitution. But both held that Art. 21 of our Constitution to be the source for the protection of our personal liberty and life in the elevated sense. Subbarao J., perceptively observed that right to privacy forms a part of the guaranteed right of personal liberty in Art. 21 of the constitution. In a scientific age, psychological fears and restraints generated by the use of scientific methods, he feared, may constitute even greater denial of personal liberty then mere crude physical restrainsts of a bygone age.
23. In a later decision of the Supreme Court in Govind v. State of M.P. , (supra) Mathew J., taking the lead given by the minority Judgment of subbarao j.,in the abovementioned Kharak singh's case and adverting to the american legal and philosophical literature on right to privacy and to the american cases reported in Griswold v. Connecticut, (1965) 14 L Ed 2 d 510 and Jane Roe v. Henry wade, (1973) 35 L Ed 2d p. 147 ruled that Article 21 of our Constitution embraces the right to privacy and human dignity. The centrepiece of the judgment in Govind's case is to hold that right to privacy is part of art. 21 of our Constitution and to stress its constitutional importance and to call for its protection. The learned Judge then examined the content of the right to privacy and observed that "any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage motherhood, procreation and child rearing." The learned Judge stressed the primordial importance of the right to privacy for human happiness and directed the ocurts not to reject the privacy-dignity claims brought before them except where the countervailing state interests are shown to have overweighing importance. He observed that "there can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realised as Brandies J., said in his dissent in Olmstead v. United states of America, (1927-277 US 438, 471) the significance of man's spiritual nature of his feelings and of hisintellect and that only a part of the pain, pleasure satisfaction of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the Government a sphere where he should be left alone". The learned Judge also stated "there can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior". Govind's case (Supra) thus firmly laid it down that Article 21 protects the right to privacy and promotes the individual dignity mentioned in the preamble to our Constitution . Govind's case also lays it down that the ocurts should protect and up-hold those important constitutional rights except where the claims of those rights for protection are required to be subordinated to superior state interests.
24. However it must be admitted that the concept of right to privacy does not lend itself to easy logical definition This is so partly because as Tom Gaiety said in his Article "Redefining privacy" (12 Harv civ Rts. - Civ. Lib rev p. 233,) the concept was thrown up in great haste from a miscellany of legal rock and staone and partly because of the inherent difficulties in defining such an elusive concept. The difficulty arises out of the fact that this concept is not unitary concept but is multidimensional susceptiable more for enumeration than definition. But it can be confidently asserted that any plausible definition of right to privacy is boudn to take human body as its first and most basic reference for control over personal identity. Such a definition is bound to include body's inviolability and integrity and intimacy of personal identity including marital privacy A few representative samples would bear this out. Gaiety defined privacy as "an autonomy or control over the intimacies of personal identity." Richard B. Panker in his " A definition of privacy", quoted in "philosophy and public Affairs" (1975 Vol 4 No. 4 p. 295-314 wrote:
"...............Privacy is control over when and by whom the various parts of us can be sensed by tohers. By "sensed" is meant simply seen, heard touched smelled or tasted".
Gary L. Bostwick writing in california Law review Vol. 64 P. 1447 suggests that "privacy is divisible into three components (a) repose (b) sanctuary and (c) intimate decisions of these three components he holds, that the last one is an eminently more dynamic privacy concept as compared to repose and sanctuary (P. 1466) prof. Tribe in his American constitutional Law. P. 921. Stressed another fundamental facet of the right to privacy problem. He wrote, inter alia.
"Of all decisions a person makes about his or her body the most profound and intimate relates to two sets of questions first, whether when and how one's body is to become the vehicle for another human beings cration".
25.Applying these definitional aids to our discussion it cannot but be admitted that a decree for restitution of conjugal rights constitutes the grossest from of violation of an individual's right to privacy applying Prof. Tribe's definition of right to privacy, it must be said that the decree for restitution of conjugal rights denies the woman her free choice whether when and how her body is to become the vehicle for the procreation of another human being applying parker's defintion, it must be said that a decree for restitution of conjugal rights deprives a woman of control over her choice as to when and by whom the various parts of her body should be allowed to be sensed. Applying the tests of gaiety and Bostwick, it must be said, that the woman loses her control over her most intimate decisions clearly, therefore, the right to privacy guaranteed by Art. 21 of our Constitution is flagrantly violated by a decree of restitution of conjugal rights.
26. A few decided American cases have also taken the same view of the constitutional right to privacy in that country.
27. The observations of Justice Mc reynolds in Meyer v. Nebraska, (1923) 67 L Ed 1042 highlight certain facets of this right to privacy. There the learned Judge observed:
"Without doubt, it denotes not merely freedom from bodily restraint but also the right of any individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge to marry establish a home and bring up children to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognised at common law as essential to the orderly pursuit of happiness by free men............. .............. .............. The established doctrine is that this liberty may not be interfered with under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect".
In Griswold v. Connecticut, (1965) 14 L Ed 2d 510 Mr. Justice Douglas, while invalidating a connecticut statute which made the use of contraceptives a criminal offence, wrote for the Court that "this law, however operates directly on an intimate relation of husband and wife and their physician's role in one aspect ot that relation......", implying that the right to privacy encompasses within itself intimate relationships such as those between husband and wife about the use of contraceptives. Of course, the question from where this right to privacy should be derived gave rise to different answers in that case. Mr. Justice Douglas in Griswold v. Connecticut, (1965-14 L ed 2d 510) has found penumbral areas of specific guarantees in the bill of Rights as providing the basis for the right of privacy . But Mr. Justice Goldberg wrote, in that case highlighting in the process the theoretical confusions in the stitution that the right of marital privacy falls within the category right to privacy Griswold's case is in authority for the proposition that the reproductive choice to beget and bear a child does not belong to the state and that belongs to an individual. In jane Roe. V. Henry wade, (1973) 35 L Ed 2d 147 Mr. Justice Blackmun for hte Court observed that the earlier decisions of the american Supreme Court held that only personal rights that can be deemed fundamental" or implicit in the concept of ordered liberty"......... are included in this guarantee of personal privacy they also make it clear that the right has some extension to activities relating to marriage.........procreation, contraception, family relationships, and child rearing and education........."
"Yet the marital couple is not an independent entity with a mind and heart of its own but an association of two inviduduals each with a separate intellectual and emotional make up. If the right of privacy means anything, it is the right of the INDIVIDUAL , married or single, to be free from unwanted Government intructing a person as the decision whether to bear or beget a child".
This is a clear recognition of the legal position that right to privacy belongs to a person as an individual and is not lost by marital association. In planned parenthood of Missouri v. Danforth, (1976-49 L ed 2d 788) the Court reiterated the position taken by the American Supreme Court in Eisenstadt v. Barid (1972) 405 US 438) (supra) that the right to privacy belongs to each one of the married couple separately and is not lost by reason of their marriage. The Court observed, invalidating a statutory condition, that the husband's consent is necessary for termination of pregnancy, "We cannot hold that the state has constitutional authority to give a spouse unilaterally the ability to prohibit a wife from terminating her pregnancy'. The Court further observed that "Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weight in her favour". Earlier in skinner v. Oklahoma, (1941-86 L Ed 1655) the American Supreme Court characterised the right to reproduce as one of the basic civil rights of man. In the same case Justice Jakson spoke of the state interference with reproductive decisions as involving dignity and personality. See aslo the decisions in Loving v. Virginia, (1967-18 L Ed 2d 1010) and Zablocki v. Redhall, (1978) 54 L ed 2d 618).
28. The above cases of the American Supreme Court clearly establish the proposition that the reproductive choice is fundamental to an individual's right to privacy. They uphold the individual's reproductive autonomy against the state intrusion and forbid the state from usurping that right without overwhelming social justification. That this right belongs even to a married woman is clear from justice Brennan's opinion quoted above. A wife who is keeping away from her husband, because of permanent or even temporary estrangement cannot be forced, without violating her right to privacy to bear a child by her husband. During a time when she is probably contemplating an action for divorce, the use and enforcement of section 9 of the Act against the estranged wife can irretrievably alter her position by bringing about forcible conception permanently ruining her mind body and life and everything connected with it. During a moment's duration the entire life-style would be altered and would even be destroyed without her consent. If that situation made possible by this matrimonial remedy is not to be a violation of individual dignity and right to privacy guaranteed by our Constitution and more particularly Art 21, it is not conceivable what else could be a violation of Article 21 of our Constitution.
29. Examining the validity of S. 9 of the Act in the light of the above discussion, it should be held, that a Court decree enforcing restitution of conjugal right constitutes the starkest form of Government invasion of personal identity and individual's zone of intimate decisions. The victim is stripped of its control over the various parts of its body subjected to the humiliating sexual molestation accompanied by a forcible loss of the precious right to decide when if at all her body should be allowed to be used to give birth to another human being. Clearly the victim loses its autonomy of control over intimacies of personal identity. Above all, the decree for restitution of conjugal rights makes the unwilling victim's body a soulless and a joyless vehicle for bringing into existence another human being. In other words, pregnancy would be foisted on her by the state and against her will. There can therefore be little doubt that such a law violates the right to privacy and human dignity guaranteed by and contained in Article 21 of our Constitution. It is of constitutional significance to note that the ancient Hindu society and its culture never approved such a forcible marital intercourse. Our ancient law-givers refused to recognize any state interests in forcing unwilling sexual cohabitationbetween the husband and wife although they held the duty of the wife to surrender to the husband almost absolute. Recently the British law commission headed by Mr. Justice scarman also found no superior state interests implicated in retaining this remedy on the British statute Book. It is wholly with out any social purpose. State coercion of this nature can neither prolong nor preserve the voluntary union of husband and wife in matrimony. Neither state coercion cna soften the ruffled fellings nor clear the misunderstandings between the parties. Force can only bebet force as action can only produce counter-actions the only usefulness in obtaining a decree for restitution of conjugal rights consists in providing evidence for subsequent action for divorce. But this usefulness of the remedy which can be obtained only at enormous expense to human dignity cannot be counted as outweighing the interests in upholding the right to privacy It is only after considering the various factors that hte scarman commission recommended for the abolition of this matrimonial remedy in england and the British parliament enacted a law abolishing it. It is therefore legitimate to conclude that there are no overwhelming state interests that would justify the sacrificing of the individual's precious constitutional right to privacy.