Order of cohabitation under decree for restitution of conjugal rights or for its execution can’t enforce sexual relations between estranged spouses

High Court of Delhi: While examining the question relating to the execution of a decree for restitution of conjugal rights, the Bench comprising of Pratibha Rani and Pradeep Nandrajog, JJ., held that on passing of the decree for the restitution of conjugal rights or for its execution, at the most it can enforce cohabitation between estranged spouses but cannot enforce sexual relations between estranged spouses. The Court further clarified that the object of decree for restitution of conjugal rights is to bring about cohabitation between the parties, so that they can live at the matrimonial home in amity and if a spouse violates the order of restitution of conjugal rights continuously for a year then the order becomes a stepping stone and passage to seek dissolution of marriage under Section 13(1A)(ii) of the Hindu Marriage Act, 1955.

The appeal is preferred by a appellant wife, nearing 60, who has approached the  Court against her estranged husband on coming to know that the respondent husband has filed execution of the decree for the restitution of conjugal rights as she does not want to be forced to have physical relationship with the respondent  husband in execution of the said decree. The appellant wife submitted that the marriage was not consummated because her husband was physically weak and they had lived together for 10 years without any physical relations also, that in such a strained relationship she was is not willing to join the company of her respondent  husband and resume cohabitation.

Dismissing the appeal, the Court  held that the apprehension in the mind of the appellant wife that if the decree is executed, she would be forced to have cohabitation with her husband, is a mistaken notion, referring to her own statement that since the marriage between the parties was not consummated though they lived together as husband and wife for 10 years, the Court does not find any reason for her to apprehend forced cohabitation after more than 23 years of their marriage. The Court further stated that that the decree for restitution of conjugal rights is a stepping stone and a ground to seek dissolution of marriage under Section 13(1A)(ii) of the Hindu Marriage Act, 1955 which provides that if the defaulting/withdrawing spouse is disobedient to the decree of restitution of conjugal rights and the husband and wife continue to live separately as before continuously for a period of one year, then each of them is entitled to seek dissolution of marriage as the defaulting/withdrawing spouse tries to denounce the restitution of conjugal rights but welcome as a ground for seeking dissolution of marriage under Section 13(1A)(ii). Thus, the legal position is that on passing of a decree for restitution of conjugal rights at the most it can be said that the law enforces cohabitation but it does not and cannot enforce sexual intercourse.

The Court stated that since various civil and criminal litigations are pending between the parties thus, the 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 appellant wife to resume cohabitation but with an objective to be achieved under Section 13(1A)(ii) of Hindu Marriage Act, 1955. [Sudha Gupta v. Har Prasad Gupta, 2016 SCC OnLine Del 5504, decided on 7th October, 2016]

 

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