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:
 MR. JUSTICE PRADEEP NANDRAJOG
MS. JUSTICE PRATIBHA RANI

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Whether there can be desertion without previous cohabitation by parties?

"Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held:
 Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court."
To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.
There is another aspect of the matter which disentitles the appellant from seeking the relief of divorce on the ground of desertion in this case. As desertion in matrimonial cases means the withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognised and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without previous cohabitation by the parties.

Supreme Court of India

Savitri Pandey vs Prem Chandra Pandey on 8 January, 2002

Bench: R.P. Sethi, Y.K. Sabharwal

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