SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

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The court further held that the objective of marriage is to achieve sakinah or peacefulness and that, “That is the reason why, for the sake of sustaining a sakinah family, it is considered reasonable for a husband wishing to practice polygamy to first ask for the opinion and consent from his wife so that she will not be hurt. In addition, the wife’s consent is required because it is closely related to the wife’s position as an equal partner and as a legal subject in a marriage whose dignity and status must be respected.” [emphasis added] The examination of Islamic teachings also showed that fair treatment to all the wives and children, which was related to the capacity to provide for current and future wives and children and the capacity to be present during certain times and in certain places, was a necessary condition for allowing polygamy. To ensure such fairness, the court held, the State not only has the authority to regulate polygamy but has an obligation to realise such fairness. 278 Dismissing the petition an detailing the reasons the Constitutional Court held, “Whereas the articles in the Marriage Law which state the reasons, requirements and procedures of polygamy, are none other than an effort to guarantee the recognition of the rights of wives and future wives the exercise of which becomes their husbands’ responsibility as the ones engaging in polygamy in the context of realizing the objective of a marriage.” 3.5 Restitution of Conjugal Rights The personal laws of some of the research countries allow for the restitution of conjugal rights i.e. enforcing cohabitation in a marriage. In Bangladesh, provisions for the restitution of conjugal rights exist in the Muslim Family Laws Ordinance, 1961. Under the Family Courts Ordinance, 1985 only a family court may deal with cases related to restitution of conjugal rights. Several cases of the High Court have held the restitution of conjugal rights to be incompatible with the Constitution. Thus, in Nelly Zaman v. Giasuddin Khan, 279 the court held that with the lapse of time and social development, “the very concept of the husband’s unilateral plea for forcible restitution of conjugal rights as against a wife unwilling to live with her husband has become outmoded and does not fit in with the accepted State and Public Principle and Policy of equality of all men and women being citizens equal before law entitled to equal protection of law and to be treated only in accordance with law as guaranteed un Articles 27 and 31 of the Constitution of Bangladesh.” The court also commented on the actions of the lower courts (which passed orders in favour of the restitution of conjugal rights) in invoking the common law doctrine of les pendens in a suit for restitution of conjugal rights which relates to the transfer of immovable property. “It is difficult to appreciate that the right of conjugal relationship with one’s wife can be compared with the transfer of immovable property unless a woman is considered as 278 While holding that other arguments of the petitioner related to increase in adultery or the number of women outnumbering the number of men were irrelevant in a Constitutional review, the Court noted that polygamy was allowed for the first time in Islam after the Uhud war where a number of men had been killed resulting in an increased number of widowed women and orphans who urgently needed attention. “It was under such a circumstance that practicing polygamy was allowed and legal (halal) for the first time in the history of Islam. Even under such circumstance, the legal practice of polygamy was still followed by certain requirements, one of them being fair treatment.” The Court further held that polygamy does not constitute an act of worship in its special sense and therefore its regulation is not against the teachings of Islam. 279 34 DLR (1982) 74
immovable property. The above proposition laid down by the courts below on this question must be held to be grossly erroneous and absurd on the face of it.” Similarly, in Mrs. Shehrin Akhter and another v. Al-Haj Md. Ismail 280 the High Court Division rejected the request by a man for restitution of conjugal rights as part of a petition challenging the divorce by his wife. The court held that such directions in matters of the relationship between man and wife, no longer hold good and are opposed to the principles laid down in Articles 27 and 31 of the Constitution. In India, the restitution of conjugal rights is provided under the Hindu Marriage Act, 1955, the Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936 which provide that where either spouse has withdrawn from the society of the other, the District Court on application may issue a decree of restitution of conjugal rights under certain circumstances. 281 This provision of the Hindu Marriage Act was challenged in T. Sareetha v. T. Venkata Subbaiah. 282 The Andhra Pradesh High Court held that the remedy of restitution of conjugal rights was violative of the wife’s fundamental right to personal liberty and equality guaranteed by Articles 21 and 14 of the Indian Constitution. The High Court explained that by enforcing the right of husband and wife to each other’s company and the right to have marital intercourse, the woman’s right to personal liberty was violated. Further, the fact that the remedy was available to both husband and wife did not satisfy the provisions of Article 14 as the social reality of Hindu society found the maximum usage of this provision by the husband. The Delhi High Court in Harvinder Singh v. Harmandar Singh 283 held that the view of the Andhra Pradesh High Court was a distortion of the concept of conjugal rights and that in its right perspective, its object is to restore cohabitation and not merely sexual intercourse between estranged couples and upheld the remedy as a great reconciliatory step. The debate between the High Courts as to the validity of the remedy was resolved by the Supreme Court in Smt. Saroj Rani v. Sudharshan Kumar Chadha 284 where conjugal rights were held as inherent in the very institution of marriage and that Section 9 had sufficient safeguards to prevent it from becoming a tyranny. The Supreme Court upheld the remedy and stated that it was not opposed to Articles 21 and 14 while opining that constitutional law should not be allowed to invade the home. “One general observation must be made. Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14 has any place. In sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of Constitutional law will have the effect of weakening the marriage bond.” 280 20 BLD (HCD) 159 (2000) 281 Section 9 of the Hindu Marriage Act (India) states that, “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 of 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.” 282 AIR 1983 AP 356 283 AIR 1984 Delhi 66 284 AIR 1984 SC 1562 75
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THE INTERNATIONAL COUNCIL ON HUMAN
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6. ACCESS TO HEALTH SERVICES IN REL
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ABBREVIATIONS AIDS ART ARV CEDAW CE
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in the regional reviews. This is a
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provide for information and distrib
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B. METHODOLOGY In keeping with the
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elevant and key laws and judgments;
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The inability of many sexually stig
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Equality irrespective of a person
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The centrality of women’s rights
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social standing, religious belief,
Page 23 and 24: according to the physical condition
Page 25 and 26: Constitutional Court in The Nationa
Page 27 and 28: protections or statutory law. There
Page 29 and 30: However it also noted that every Ri
Page 31 and 32: concerned with declaring that the h
Page 33 and 34: without guaranteeing the personal p
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Page 39 and 40: Such conduct mentioned in clauses (
Page 41 and 42: embraced the complainant and asked
Page 43 and 44: does not sever the ties between the
Page 45 and 46: The potential recognition of same-s
Page 47 and 48: Similarly, seeking out sex educatio
Page 49 and 50: condom). Across such laws, the defi
Page 51 and 52: jurisdictions. Nepal, a country wit
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Page 55 and 56: with an unmarried woman is not puni
Page 57 and 58: physical characteristics (virginity
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Page 61 and 62: The opinion of the National Commiss
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Page 69 and 70: female who has not attained 12 year
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Page 77 and 78: consummation of marriage. The incap
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Page 109 and 110: In holding that there was no justif
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Page 117 and 118: The fined amount is to be given to
Page 119 and 120: the State and its citizens is one o
Page 121 and 122: every person “the right against e
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eing committed. 570 While prosecuti
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Broader provisions related to child
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in order to engage the child in suc
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her.” 631 A person is deemed to h
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that they are denied the fundamenta
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Indonesia’s Constitution recognis
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In Thailand too, abortion is illega
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With regard to the first question,
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Further, any pregnant woman may vol
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childbearing age to establish a hea
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Government could not be held liable
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among those in the reproductive age
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Members' right to protect public he
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7. INFORMATION, EDUCATION AND EXPRE
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education as well as non-discrimina
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The exchange of information through
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community.” 727 In each case, the
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Nepal’s Interim Constitution limi
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Sections 292, 292A, 293 and 294 of
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“...any interpretation of 'obscen
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“1 (a) Condones or extenuates act
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In Thailand, places of entertainmen
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8. SEX WORK This section examines h
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The use of raids, and exemptions fr
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clients or make an offer for a sex/
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and non-rehabilitative juvenile jus
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“In view of the aforesaid proposi
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person who commits the act are of t
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as parent or guardian has given his
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with one) on the charge that it was
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for sex workers while emphasizing t
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19. Azimuddin v State of Uttar Prad
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1. Acid Control Act, 2002 2. Acid-O
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13. Intellectual Property Act, 2003
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