Monday, 10 October 2016

Whether Order For Cohabitation Can Enforce Sexual Relations Between Husband, Wife?

 As per the scheme of the 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 the withdrawing spouse is
disobedient to the decree of restitution of conjugal rights and the husband
and wife continue to live separately as before, each of them is entitled to
seek dissolution of marriage. 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 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.
IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Delivered on: October 07, 2016
 MAT.APP.(F.C.) 64/2015
SUDHA GUPTA 
v
HAR PRASAD GUPTA 
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI



1. The parties to this appeal got married on February 17, 1993 at Kanpur
(Uttar Pradesh) according to Hindu Rites and Ceremonies. At the time of
solemnization of the marriage both the parties were in the age group of 35
years. On coming to know that the respondent/husband has filed execution
of the decree passed by the Family Court for the restitution of conjugal
rights, she has preferred this appeal as she does not want to be forced to
have physical relationship with the respondent/husband in execution of the
said decree.
2. Sh.Om Saran Gupta, Advocate who is not only her counsel but also
real brother submits that the appellant/wife is not worried about the decree
so long as it remains on paper but the appellant/wife is aggrieved to the
extent that in execution she may not be forced to resume cohabitation. 
3. Relationship between the parties to be of husband and wife is
admitted. The parties are having numerous litigations, one of the litigation
being a petition under Section 9 of the Hindu Marriage Act, 1955, initiated
by the respondent/husband on September 29, 2009. The petition was
vehemently contested by the appellant/wife. Vide impugned judgment and
decree dated February 28, 2015 the learned Judge Family Court held that the
wife has withdrawn herself from the society of the respondent/husband
without any just excuse at the behest of her brother Sh.Om Saran Gupta,
Advocate. The Family Court has also noted that she has been taking care of
the children of her brother and discharging her duties more as a sister than as
a wife. The Family Court has also noted her family circumstances i.e. death
of parents, that being deprived of parental love and affection she was
dependent on her brother for all purposes. She could not settle in her life till
the age of 35 years i.e. when she got married. The learned Judge Family
Court directed the wife to join the company of her husband.
4. Sh.Om Saran Gupta, Advocate has submitted that notwithstanding the
decree of restitution of conjugal rights, the relationship between the parties
is so strained that the appellant is not willing to join the company of her
husband and resume cohabitation.
5. Thus, the grievance of the appellant/wife as on date is not against the
decree of restitution of conjugal rights in favour of the husband but on its
execution.
6. 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. If the 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 the Hindu Marriage Act, 1955 which
reads as under:
‘(ii) that there has been no restitution of conjugal rights as
between the parties to the marriage for a period of [one year]
or upwards after the passing of a decree for restitution of
conjugal rights in a proceeding to which they were parties.’
7. As per the scheme of the 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 the withdrawing spouse is
disobedient to the decree of restitution of conjugal rights and the husband
and wife continue to live separately as before, each of them is entitled to
seek dissolution of marriage. 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 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.
8. 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.
9. The amendment in the Hindu Marriage Act in the year 1964 by
insertion of Section 13(1A) is a legislative recognition of the principal that
in the interest of society if there has been a breakdown of the marriage
keeping the parties tied together would not serve any purpose.
10. The legal position which emerges is that while the defaulting spouse
tries to denounce the restitution of conjugal rights but welcome as a ground
for seeking dissolution of marriage under Section 13(1A) (ii) of the Hindu
Marriage Act, 1955.
11. The question with respect to the execution of a decree for restitution
of conjugal rights has been examined by the Supreme Court in the decision
reported as AIR 1984 SC 1562 Smt.Saroj Rani Vs. Sudarshan Kumar
Chadha. The relevant discussion appears in paragraph Nos. 16 and 17 of the
report as under:-
“16. Section 9 only is a codification of pre-existing law. Rule
32 of Order 21 of the CPC deals with decree for specific
performance for restitution of conjugal rights or for an
injunction. Sub-rule (1) of Rule 32 is in these terms:
Where the party against whom a decree for the
specific performance of a contract, or for
restitution of conjugal rights or for an injunction,
has been passed, has had an opportunity of
obeying the decree and has willfully failed to obey
it, the decree may be enforced in the case of a
decree for restitution of conjugal rights by the
attachment of his property or, in the case of a
decree for the specific performance of a contract,
or for an injunction by his detention in the civil
prison, or by the attachment of his property, or by
both.
17. It is significant to note that unlike a decree of specific
performance of contract, for restitution of conjugal rights the
sanction is provided by court where the disobedience to such a
decree is willfull i.e. is deliberate, in spite of the opportunities
and there are no other impediments, might be enforced by
attachment of property. So the only sanction is by attachment of
property against disobedience of a decree for restitution of
conjugal rights where the disobedience follow as a result of a
willfull conduct i.e. where conditions are there for a wife or a
husband to obey the decree for restitution of conjugal right but
disobeys the same in spite of such conditions, than only
financial sanction, provided he or she has properties to be
attached, is provided for. This is so as an inducement by the
court in appropriate case when the has decree restitution for
conjugal rights and that the court can only decree if there is no
just reason for not passing decree for restitution of conjugal 
rights to offer inducement for the husband or wife to live
together in order to give them an opportunity to settle up the
matter amicably. It serves a social purpose as an aid to the
prevention of break-up of marriage. It cannot be viewed in the
manner the learned single judge of Andhra Pradesh High Court
has viewed it and we are therefore unable to accept the position
that Section 9 of the said Act is violative of Article 14 or Article
21 of the Constitution if the purpose of the decree for restitution
of conjugal rights in the said Act is understood in its proper
perspective and if the method of its execution in cases of
disobedience is kept in view.”
12. The parties to this appeal are aged about 60 years i.e. on the verge of
becoming senior citizens. Whether the parties are in a position to resume
cohabitation, instead of a detailed discussion we just extract what the wife
has stated during her cross-examination before the learned Judge Family
Court
“……………It is correct that I have stated that the petitioner is
impotent. I never got myself aborted. It is wrong to suggest that
I got my child aborted in Vohra Nursing Home, Raja Garden,
Delhi. It is correct that although I knew that the petitioner
was impotent yet I spent 10 years with him in Delhi. I told that
my husband was impotent to my neighbours namely Babbu,
Sonia, Rani, however, I do not remember their addresses and I
did not tell it to my relatives under the hope that situation may
improved……..”
13. In her affidavit also she has stated that marriage was not
consummated because respondent/husband was physically weak and this
fact was well within the knowledge of her mother-in-law. To hide the
physical inefficiency of her son, her mother-in-law sent two children aged
about 8 years (boy) and 12 years (girl) from Kanpur to Delhi in their one
room house. The marriage being not consummated as she never conceived,
there was no question of any abortion. 
14. If the case of the appellant/wife is that the marriage between the
parties was not consummated though they lived together as husband and
wife for 10 years, we do not find any reason for her to apprehend forced
cohabitation after more than 23 years of their marriage.
15. It is a matter of record that various civil and criminal litigations are
pending between the parties. 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 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.
16. We do not find any merits in this appeal. The appeal is dismissed but
without any order as to costs.
17. Trial Court Record be sent back alongwith copy of this order.
 PRATIBHA RANI
 (JUDGE)

PRADEEP NANDRAJOG
 (JUDGE)
OCTOBER 07, 2016

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