High Court of Delhi

Sudha Gupta v. Har Prasad Gupta

MANU/DE/2750/2016

07.10.2016

Family

Decree for restitution of conjugal rights enforces cohabitation but it does not and cannot enforce sexual intercourse

Parties to present appeal got married on February 17, 1993 at Kanpur (Uttar Pradesh) according to Hindu Rites and Ceremonies. Respondent/husband has filed execution of decree passed by Family Court for restitution of conjugal rights. Appellant/wife preferred instant appeal as she does not want to be forced to have physical relationship with Respondent/husband in execution of said decree. Grievance of Appellant/wife as on date is not against the decree of restitution of conjugal rights in favour of the husband but on its execution.

Object of decree for restitution of conjugal rights is to bring about cohabitation between parties so that they can live at matrimonial home in amity. If decree for restitution of conjugal rights is not complied with for a period of one year it becomes a ground to seek dissolution of marriage under Section 13(1A)(ii) of Hindu Marriage Act, 1955.

As per the scheme of Hindu Marriage Act the decree for restitution of conjugal rights is a stepping stone and passage towards divorce. Section 13(1A)(ii) provides that if withdrawing spouse is disobedient to decree of restitution of conjugal rights and husband and wife continue to live separately as before, each of them is entitled to seek dissolution of marriage. Thus, on passing of a decree for restitution of conjugal rights at the most it can be said that law enforces cohabitation but it does not and cannot enforce sexual intercourse. Apprehension in the mind of the appellant that if the decree is executed she will be forced to have cohabitation with her husband is a mistaken notion.

While Section 9 of the Hindu Marriage Act tries to bring the parties together, Section 13(1A) and 13(1A)(ii) dissolve the marriage if there has been no resumption of cohabitation for a period of one year or upward after the passing of decree of restitution of conjugal rights. If case of Appellant/wife is that marriage between parties was not consummated though they lived together as husband and wife for 10 years, no reason for her to apprehend forced cohabitation after more than 23 years of their marriage.

It is a matter of record that various civil and criminal litigations are pending between the parties. The While dismissing appeal High court held that, purpose behind filing of a petition under Section 9 of the Hindu Marriage Act for seeking a decree for restitution of conjugal rights or filing the execution appears to be not to force the wife to resume cohabitation but with an objective to be achieved under Section 13(1A)(ii) of Hindu Marriage Act, 1955 which enables a party to seek divorce if a decree for restitution of conjugal rights is disobeyed.

Relevant

Smt.Saroj Rani Vs. Sudarshan Kumar Chadha, Sections 9, 13(1A)(ii) of Hindu Marriage Act, 1955

Tags : Conjugal rights Restitution Divorce

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