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DELHI HIGH COURT
Pradeep Nandrajog and Pratibha Rani, JJ.
Sudha Gupta —Appellant
versus
Har Prasad Gupta —Respondent
MAT.APP.(F.C.) No.64 of 2015
Decided on 7.10.2016
Counsel for the Parties:
For the Appellant:Mr. Om Saran Gupta, Advocate
For the Respondent: In person
IMPORTANT POINT
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.
Headnote:Hindu Marriage Act, 1955—Section 9—Decree for restitution of conjugal rights in fovour of husband passed by Family Court—Appeal on plea that appellant wife did not want to be forced to have physical relationship with respondent-husband in execution of decree—On passing of a decree for restitution of conjugal rights law enforces cohabitation but it does not enforce sexual intercourse—Appellant had a defence plea before trial court that respondent-husband was impotent and marriage was not consummated—No reason appeared for her to apprehend forced cohabitation after 23 years of their marriage—Purpose appeared to be to achieve objective under section 13(1A)(ii) of the Act—Appeal was without merits.
Held: 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 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.
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.
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.
We do not find any merits in this appeal. The appeal is dismissed. (Paras 7 and 13 to 16)
Result: Appeal dismissed.
Pratibha Rani, J.—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 restituti
