One of the most fundamental aspects of a marriage are the exclusive conjugal rights that each of the parties to the marriage enjoy. Conjugal rights may be defined as the rights that a husband or wife is entitled to in a marriage, especially the right to have sexual intercourse with his or her spouse.
It is, however, not unusual to find one of the spouses denying the other this right. A denial of conjugal rights can cause the victim a lot of emotional distress. The aggrieved spouse can petition the court to seek restitution of the rights under the Matrimonial Cause’s Act. Denial of conjugal rights can be enough a ground for a party to the marriage to seek divorce. It is a form of cruelty.
The provisions for the restitution of conjugal rights are to be found in the Matrimonial Causes Act. Section 20 of the act provides that a petition for restitution of conjugal rights may be presented to the court by either the husband or the wife, and the court, on being satisfied that the allegations contained in the petition are true, and that there is no legal ground why a decree for restitution of conjugal rights should not be granted, may make the decree accordingly.
If a court makes an order for restitution of conjugal rights, then the issue of enforcement comes in. How does a spouse who obtains these orders to have their conjugal rights restored enforce them on their spouses? Can the court compel a person to have sexual intercourse with another?
Section 21 (1) provides that where the application is by the wife, the court may in the event of the decree not being complied with order the respondent (husband) to make to the petitioner such periodical payments as may be just, and the order may be enforced in the same manner as an order for alimony made under this act.
The act provides that if the husband refuses to restore conjugal rights as ordered by the court, he will be compelled to pay sums of money to the wife. The act does not address the plight of a husband whose wife has not obeyed an order of the court to restore conjugal rights. Article 27 of the constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. This section cries out for harmonisation with the constitution so as to speak equality in the marriage as guaranteed under Article 45 of the constitution.
There are many reasons why parties to the marriage deny each other conjugal rights. The issue of restitution of the conjugal rights has a link to Article 43 of the constitution that guarantees the right to health, including reproductive health. A party may deny another their conjugal rights because they don’t want to expose themselves to STI, or expose their partners to STIs. The HIV and Aids Prevention and Control Act provides that it is an offence to knowingly transmit the disease. Section 24 (2) provides that a person who is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knew that fact and voluntarily accepted the risk of being infected. A party to a marriage may be denying the other their conjugal rights so as to avoid infecting them with HIV. If the court orders that they restitute the rights, then they will be in violation of the HIV and AIDS prevention and Control Act.
Article 28 of the Constitution provides that everyone has inherent dignity and the right to have that dignity respected. Compelling a spouse who might be afraid of contracting a disease that offend their reproductive health rights is indeed lethal to say the least. The provisions of the law should be followed but only to the extent that they don’t infringe on the rights of the persons.The court has to strike a balance.
The enforcement of orders for restitution of conjugal rights can be a challenge. One should not be compelled to have intercourse with a spouse that they don’t want to, without them consenting to it. If a party has been ordered to restitute conjugal rights and refuses to abide by the order, the provision for payment of sums of money is adequate relief. If a party fails to restitute the conjugal rights as ordered by the court, then that should be left as a prima facie ground for divorce.
Otherwise we will open ourselves to marital rape in the name of enforcing conjugal rights orders.