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The Restitution of the Conjugal Rights of the State

October 27, 2010

Despite the many thoughtful critiques of the relationship between family and the state, I have always found it a little surprising that there is very little commentary on the relationship between two strange legal fictions. The first is the idea of the restitution of conjugal rights (RCR), and the other is sedition. The restitution of conjugal rights basically consists of the right of a spouse to demand that his or her- though more often his than her- spouse cohabit with him after she has ‘withdrawn from his society’. Away from the misty world of legal euphemisms, we all know what this means: that you can be forced to sleep with a somewhat less than pleasant person against your wishes. A legal commitment to love in a marriage is a serious thing indeed which only warns us that we must proceed with such a choice very carefully.

But like many marriages, the question of choice is somewhat restricted for many people- as is indeed the case of the choice of loving your country. After all isn’t sedition a crime of passion, and the punishment of an offence of the withdrawal of love for your nation. It is interesting to see that while treason in Sec. 121 of the IPC is about the waging of war against the state, sedition is about a forced love. It is about the creation of ‘disaffection’. As Nivedita Menon points out in her post, disaffection means “the absence or alienation of affection or goodwill; estrangement”.

A legal commitment to love your nation is also a serious thing indeed, and what then is the punishment of sedition if not, the restitution of the conjugal rights of the state?

33 Comments leave one →
  1. Nivedita Menon permalink*
    October 27, 2010 9:16 AM

    This analogy is absolutely brilliant.
    Obligatory love and duty, punishment for failure to love – why didn’t I see the endless parallels between marriage and citizenship before?
    Thanks!

    • Vivek Khadpekar permalink
      October 27, 2010 3:05 PM

      While on the topic of parallels, would the State be immune against accusations of marital rape? Just wondering…

  2. October 27, 2010 9:58 AM

    Nation, in patriotic imaginations of majority of folks, is considered as a provider like the male head of the family. Both these institutions can compromise with any bad behaviour of the subjects but never with those showing signs of disloyalty.
    Alas, capital dictates not just how the subjects of nation should behave, but also how the subject wife in the family should conduct herself.
    Unfortunately, subjects in both cases remain caught in webs of myriad identities and culture to the point of missing the fundamentals of unity in struggle against capitalist and patriarchal high handedness in their daily lives.
    The problem, I believe, is less about collective expression of dissent than the willful participation of victims themselves in such a system of total absurdities.

  3. October 27, 2010 10:09 AM

    The problem, I believe is less about collective resistance itself than about willful participation of majority of the subjects when it comes to questions involving loyalty to the Nation or the Family. As capital dictates in both cases how the subjects should behave, the latter are divided in a myriads of identities and culture, which unfortunately are founded on the very idea of being loyal.

  4. October 27, 2010 11:25 AM

    This marriage analogy is admittedly disconcerting vis-à-vis the mother and son relationship with the nation that we have grown up with, especially when love and emotions is the issue. [TNM]

    • Nivedita Menon permalink*
      October 27, 2010 1:31 PM

      The whole point is this – the nationalism thing blows wide open when we think of the Nation as the husband, not the mother, no?

      • October 27, 2010 1:43 PM

        Exactly, and whether our relationships should be so interchangeable. [TNM]

      • Nivedita Menon permalink*
        October 27, 2010 6:10 PM

        Our relationships with mothers and husbands is not the point Tusar, our conceptualization of the Nation is what we’re discussing here. The Nation is not “really” our mother any more than it is our husband!

      • October 27, 2010 6:27 PM

        True, but any conceptualization would mean some kind of relatedness. A too reductive analogy can engender delusions and hence is a methodological hazard. [TNM]

  5. nadira cotticollan permalink
    October 27, 2010 1:59 PM

    Yes Nivedita..that is the point….when the nation begins to appear like an overbearing husband or father, then disaffection can indeed begin to take root. It becomes worse when the head of the family (Government here) shows discriminatory tendencies as well and quite obviously furthers the interests of one or more children much to the disadvantage of the other children as is being evidenced in the Govt.s stance towards corporate interests. And if someone points this out , you are charged of sedition?

  6. October 27, 2010 3:51 PM

    Let’s not take the conjugal analogy too far. Most often the acrimony, bitterness and the sense of loss which accompanies a divorce last throughout individual lives. And here we’re not talking about two individuals, but one incumbent nation-state and one to-be nation-state, for the time being ignoring the already divorced one. I’m not sure whether pragmatic solutions, divorce being one of them, solve the problem or complicate it further. Being born and brought up in a refugee family of freedom fighters, I can empathize with the sentiment of “Azadi” on one hand, but on the other am mortally afraid of another partition. I’ve an eerie premonition that even if territorial independence is granted to Kashmir, the subcontinent is destined to bear the cross forever, the cross growing heavier and heavier with time.

  7. October 27, 2010 3:54 PM

    Brilliant!

  8. Bobby permalink
    October 27, 2010 5:12 PM

    wonderful

  9. Vivek Banerjee permalink
    October 28, 2010 8:11 AM

    The analogy is defective. The law cannot make estranged couples sleep together by force. The restitution of conjugal rights comes into play only if both parties are willing. Otherwise, there is always the provision of separation/ divorce.
    Now coming to the relationship of an individual with the motherland; if for some strange reason you so not care for the country, the least you can do is keep mum.Sedition will be considered only when a person, through his/her deeds or words, does something that is detrimental to the interest of the country.

    • Nivedita Menon permalink*
      October 28, 2010 8:32 AM

      Vivek, why not check facts before making such confident declarations? You say this provision comes into play only if both partners are willing. If they are willing, why would they need to go to court? This provision comes into play when there is no possibility of divorce by mutual consent, one spouse being unwilling to grant divorce. It is precisely to force one partner in a marriage to return or continue staying with the other (and while the law cannot force you to sleep together, once an unwilling wife is forced back into a marriage, she can be raped by her husband claiming his conjugal rights, for which she has no legal recourse as marital rape is not a crime.)
      Failure to comply becomes a civil offence of contempt.
      Given that this is actually “the restitution of conjugal rights” provision, the analogy with the nation is absolutely apt. And you have proved it with the latter part of your comment – something is pre-defined as everybody’s motherland regardless of whether they ever wanted to be its children, and regardless of whether the motherland has treated them fairly or not. If they have problems, shut the hell up – “keep mum”, even if mum makes you feel really unwanted and is totally unfair to you vis-a-vis her other children. And if you dare to try and leave, or even complain, then you’ll be severely punished.
      Hmm. Sounds very familiar.

  10. October 28, 2010 9:45 AM

    The idea of mother/fatherland is often defined/ interpreted in such a way that it is difficult to tell apart who are included or who are excluded from functional citizenship.
    It is here that the analogy with family matches well. Inside the family, you are frequently reminded of your duties, be it as subject or provider- rights as citizens are suspended and everything is taken for granted and is expected to be automatically taken care of.
    Imagine nation as extended family; the moment you raise questions of justice and due rights to the subjects, the heads of nation behave like heads of family. Never mind the origin of sedition laws dates back to earlier phase of bourgeois nationalism; patriarchy is even older than that, and it takes newer forms too, to be adapted to the needs of neoliberal war economy.

  11. Vivek Banerjee permalink
    October 28, 2010 10:05 AM

    Nivedita,
    While accepting the passionate plea you make for ‘freedom of expression’, I would still like to reaffirm the point that cursing ones country achieves nothing.
    If staying in a country pains someone so much, why not emigrate to more conducive environs. ( As if the other country will treat us better or give us more freedom of speech.) And while talking about our country, one has to be careful to see that his/her remarks cannot be construed to provide fuel to the fire of separatism.

    • Nivedita Menon permalink*
      October 28, 2010 1:32 PM

      Vivek,
      Yes, I was wondering when this suggestion would be made. Your way of doing it is much more civil than is usual (i.e pack your bags and go to Saudi Arabia etc). Nevertheless, the idea is the same. Go away, emigrate, get out of our sight. We dont want to see you with your sulky faces and your shrill voices that dont say exactly what we think. And when you go, don’t dare to take anything with you – everything here belongs to us.
      If one face of the broken marriage is the restitution of conjugal rights (punishing secession/sedition), the other is the driving out of the errant wife (get out and go to Pakistan).
      Lawrence, this analogy is becoming too eerily literal. It might reach a point where it is no longer an analogy but pure substitution :)

      • Vivek Banerjee permalink
        October 28, 2010 3:31 PM

        No Nivedita, I don’t want you (or me or anyone) to leave this country. I am no rabid right winger ( or left winger or any winger). The point I was trying to make is that no country in the world ( including USA or UK or Greenland at that) allows its citizens to rant against it beyond a certain point. I am all for dissent. I believe that every individual has the right to have his/her say. But everyone ( particularly celebrities) have to make sure that their public pronouncements are not used by misguided elements as weapons to further their ( dubious) cause.

  12. Jhuma Sen permalink
    October 28, 2010 10:38 AM

    One of the best I have read in recent times!

  13. October 28, 2010 4:48 PM

    In fact, the allusion to love and marriage is not entirely new. The other day Sajjad Lone was using the metphor of Laila Majnu to represent the love of “azadi” among the Kashmiri youth. And he admitted, despite quite rational forewarnings about the future nation-state, they are hopelessly in love with “azadi”. May be what’s needed from our side is not rational understanding, but heartfelt empathy. And may be, as we’ve grown older, tired and cynical as a nation, we fail to appreciate hopelessly romantic expectations of the teens. Can’t blame either side.

  14. Sikha Ghosh permalink
    October 28, 2010 5:14 PM

    What a delightful little piece! Thank you.

  15. rajan kurai krishnan permalink
    October 28, 2010 9:48 PM

    delightfully provocative. Thanks for the idea.

  16. Vivek Banerjee permalink
    October 29, 2010 7:28 AM

    Why have you censored my last comment? Don’t you believe in freedom of speech?

    • Nivedita Menon permalink*
      October 29, 2010 8:50 AM

      Vivek, your last comment (now published) was held up because none of the administrators got to kafila at all yesterday, being busy with their day jobs. As you will see in our comments policy, comments can take up to 24 hours to be posted.
      What is interesting for me is that you could not tolerate the delay in your views being expressed for even a few hours (although you are just coming back to say the same thing again and again) before you started ranting about free speech, but if others express views contrary to your own, they should leave the country, no less!
      However, let me also add (to anyone who may be reading this, not just to Vivek) that we DO NOT pass all comments and nor are we obliged to. Apart from uncivil and abusive comments (of which we get many), which are deleted, individual authors and kafila commentators to whom readers respond, can decide not to pass comments if they feel the debate is not being furthered. (This is also in our policy). Often people just keep on and on so that they can get the last word and “correct” our “line”.
      Kafila is one of the few non-mainstream spaces where odd, idiosyncratic and downright subversive and seditious voices can be heard. In this internet era, those whose comments we decide not to post can publicize their views on those issues and their anger at kafila freely all over the web, and believe me, they do!
      I should add one last thing. I express here only my own views. Kafila is not one body, but a collective of individuals, and different people on kafila have differing views on this. So, although this post is by Lawrence, if comments address me, then I decide what to do. Lawrence is not responsible for anything I have said here!

  17. Pyoli Swatija permalink
    October 29, 2010 10:44 AM

    Brilliant! Reminds me of Gandhi’s statement during his epic Ahemadabad Trial speech where he was tried for sedition- “Affection cannot be manufactured by law”

  18. Uday permalink
    October 29, 2010 12:26 PM

    Reading this post and the comments on it after teaching Hobbes to a class of college students gives me the shivers. To the extent that the social and sexual contracts constitute each other mutually, sedition and RCR are perhaps more than merely analogies. They’re joint at the hip! And after reading above that dissenters should get out of the country and go wherever else suits them better, again, the shadow of Hobbes looms eerily on this entire issue.

    Ultimately, this seems to me to be a question of what kind of state we want in India (or anywhere else). Even in an elementary liberal sense, shouldn’t the right to dissent or even rebel and secede be granted to citizens as both individuals and groups? What else do we have our liberal constitution and its florid, archaic prose for?

  19. Vasanth permalink
    October 29, 2010 5:08 PM

    “shouldn’t the right to dissent or even rebel and secede be granted to citizens as both individuals and groups?”

    The right to dissent and rebel are given, but not the right to secede. What is the point in citing the constitution of a country when you do not want to be its citizen.. After all one of the fundamental duties of a citizen is “To uphold and protect the sovereignty, unity and integrity of India”. When everybody talks of their rights, no one cares for the duties. Both rights and duties go hand in hand. One cannot exist without the other.

    And to Nivedita, a responsible citizen will try to abide by the constitutional avenues to express his dissent. Not by asking for azadi. If every dissent needs to be addressed by azadi, it will only lead to balkanization of India.

    And what is this whole fuss about RCR ? The court anyhow is obliged to give divorce once the decree is violated for 1 year..

  20. Rohit De permalink
    October 29, 2010 7:39 PM

    @ Lawrence, I would gently disagree that RCR is used more by men than by women. As Flavia Agnes, and other family law practioners have pointed out, RCR has often been used by women to assert rights to their children or the matrimonial home.

    For instance when a woman is deserted or thrown out of the matrimonial home, but does not want to file for divorce, the only way she can protect her rights is through RCR. As Agnes argues, ” A petition for Restitution of Conjugal Rights provide the woman with an entry point into litigation which seek to protect her rights of child custody, maintenance and right of residence in the matrimonial home. She can also obtain interim orders that will effectively safeguard these rights and lay the ground for further negotiations and settlements. Women’s groups have used this strategy in a number of cases where women have been abandoned but due to social constraints do not wish to dissolve the marriage. ”

    Despite the colluding patriarchy intrinsic in the framing of this provision, its use and meaning is being changed

    Law has subversive potentials. If the state demands we love it, surely there remains the potential of flipping the question around and point out that the ‘state is not loving us’.

  21. Lawrence Liang permalink
    October 30, 2010 12:28 AM

    Hi Rohit

    I agree with you, and am aware of the strategic use of RCR by the womens movement. The use of the analogy was more from its original assumption and the close nexus between the force of law and states of being.

    I want to expand a little on the last point that you made, about flipping the question. In the shrill rhetoric about sedition that we hear, there is an assumption that dissent is assumed to be an act of hatred. I am more interested in how the question of ‘consent’ which is assumed in law and political philosophy can be thought of. Central to the imagination of forms of governance (whether through the Polis, or through the governance of our own lives- our erotic-emotional relationships) is the idea of ‘consent’. Marriage of course straddles both these worlds, and the idea of consent or the withdrawal of my consent is what runs through RCR and Sedition.

    How do we think of the idea of the withdrawal of my consent. For someone like Stanley Cavell who sees marriage and politics as being enjoined by what it means to engage in conversations of justice, dissent is not necessarily the undoing of consent but a disagreement about its content.

    A conversation of justice could entail a rejection of society as it stands (because it does not conform to what I consented to), while at the same time consenting to the horizion of its possibilities. I think Arundhati’s statement in response to accusations of sedition is a fine example of that.

    If we shift our focus away for a moment from the strategic use of law and ask what a collapse of a marriage or my relationship to a political society means for a reworking of the idea of winning back my consent, then clearly the answer does not lie in the enforceability of my consent, whether in a marriage or in my obligations as citizen.
    The use of force in questions of love is what produces the incompatibility between a particular love and a particular social arrangement of love.

    My refusal or my withdrawal of my consent is an integral part of my belonging.

  22. Uday permalink
    October 30, 2010 8:23 AM

    @ Vasanth: if there is no right to secede, then we are all prisoners of the present nation-state, including its territorial boundaries. At least I do not interpret our “liberal” constitution in that way. “To uphold and protect the sovereignty, unity and integrity of India” might well involve redrawing the boundaries (secession) and/or renegotiating sovereignty within existing boundaries (rebellion). The constitution did not say the “unity of India as of 15.8.1947″ (or any such date). Just as our ex-colonial rulers in the UK can make provisions for the Irish, so too can we. Better late than never!

    Potentially, both azadi activists in Kashmir and Maoist rebels can claim to be operating within the bounds of the Indian constitution. For dissenters (or “seditionists” if you prefer) such as Arundhati Roy, the case is far easier to make. It is quite another matter that those entrusted to interpret the constitution might have other political interests. After all, they do reveal their cards when they sanction the destruction of mosques to make way for imaginary temples!

  23. October 30, 2010 2:21 PM

    Those who claim to be Indian nationalists, and thus claim to own India, and want dissenters and separatists to leave India’s territory and go somewhere else – all such people need to read Saadat Hasan Manto’s short story, ‘Toba Tek Singh’. Various translations of the Urdu original, the Urdu original and its Hindi transliteration, are all available online. Manto, incidentally, was of Kashmiri origin.

  24. Iqbal Abhimanyu permalink
    November 3, 2010 12:54 AM

    loved the piece..
    या रब्बा, देदे कोई जान भी अगर,
    दिलबर पे हो न दिलबर पे हो न कोई असर… :P

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