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Restitution of Conjugal Rights – “Can’t Force Wife to Cohabit with Husband Even by a Court’s Decree”: Gujarat High Court

Team SoOLEGAL 31 Dec 2021 2:17pm

Restitution of Conjugal Rights – “Can’t Force Wife to Cohabit with Husband Even by a Court’s Decree”: Gujarat High Court

The Gujarat High Court has ruled in an important case that in a petition brought by the husband for recovery of conjugal rights, a woman cannot be forced to remain with her husband, even by a court’s judgment.

This claim was made by the Bench of Justices J.B. Pardiwala and Niral Mehta while reversing a family court ruling for a Muslim lady to return to her matrimonial home and fulfill her marital commitment with her husband.

The case in brief
Essentially, the respondent – petition husband’s before the Family court (Banaskantha district in Gujarat) was that his wife (with whom he conducted Nikah in the year 2010) had left the matrimonial house together with their young kid on July 20th, 2017, without any legal grounds and without alerting anybody.

It was further claimed before the Court that despite several attempts to encourage her to return to her matrimonial home, such efforts had failed, and hence he had petitioned the Family Court for restitution of conjugal rights under Section – 282 of the Mohammedan Law.

Based on the pleadings of both parties, the Banaskantha family Court granted the husband’s complaint and ordered his wife to return to her matrimonial residence and execute conjugal responsibilities.

Challenging this very order of the Banaskantha family Court, the woman moved to the High Court, claiming that she was being pressured to migrate and settle in Australia because she is a qualified nurse and may be able to secure a good job in Australia, and that because she was opposed to such an idea of her husband and in – laws, she had left her matrimonial house in 2017.

Court’s Observation
The Court stated at the start that the decision in a petition for restitution of conjugal rights does not solely depend on the right of the husband and that the family court should also consider whether it would be inequitable to compel the wife to remain with her husband.

Furthermore, the Court highlighted that a marriage between Muslims is a civil contract, and a claim for recovery of conjugal rights is nothing more than the enforcement of the right to consortium under this contract (specific performance of a contract).

Against this context, the Court stated that a decree for particular execution of a contract (restitution of material rights) is an equitable relief and that it is within the Court’s discretion to give or deny it in line with equitable principles.

 “It follows, from the aforesaid that in a suit for restitution of conjugal rights by a Muslim husband against his wife, if the court after a review of the evidence feels that the circumstances reveal that the husband has been guilty of unnecessary harassment caused to his wife or of such conduct as to make it inequitable for the Court to compel his wife to live with him, it will refuse the relief.”

The Court also cited to Order XXI Rule 32(1) and (3) CPC, which states that a decision for conjugal rights cannot be implemented unless it is accompanied by attachment of the other party’s property or compensation and mense profits.

“The object behind Order XXI Rule 32(1) and (3) CPC is that no person can force a female of his wife to cohabit and establish conjugal rights. If the wife refuses to cohabit, in such case, she cannot be forced by a decree in a suit to establish conjugal rights,” the court stated as it noted that there is nothing on record to show that the appellant – wife had property of her own that may be attached in the current case.

As a result, the court granted the wife’s appeal, and the impugned judgment and decree issued by the Family Court in Palanpur, District of Banaskantha, on July 07th, 2021, were overturned and set aside.

In addition, the husband’s Family suit for recovery of conjugal rights brought under section – 282 of the Muhammadan Law, was dismissed.



Tagged: Gujarat High Court   Justice J.B. Pardiwala   Justice Niral Mehta   Family court   Mohammedan Law   Banaskantha family Court  
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