Tejaswita
Decree for restitution of conjugal rights is a stepping stone and passage towards divorce
Tejaswita 12 Oct 2016

Decree for restitution of conjugal rights is a stepping stone and passage towards divorce- on passing of a decree for restitution of conjugal rights law can be said to enforce cohabitation but not enforce sexual intercourse between spouses

A division bench of the Delhi High Court recently in MAT.APP.(F.C.) 64/2015, vide its judgment dated 7th October 2016 has held that if the decree for restitution of conjugal rights is not complied with for one year, it becomes a ground to seek dissolution of marriage under Section 13(1A)(ii) of the Hindu Marriage Act, 1955.

The Hon’ble Court was adjucating on an appeal filed by the appellant who she did not want to be forced to have physical relationship with the respondent in the execution of a decree for restitution of conjugal rights. The grievance of the appellant was not against the decree of restitution of conjugal rights in favor of the husband but on its execution.

The Court, in this case has dealt with the object of decree for restitution of conjugal rights. It observed 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. 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. The Court further clarified that according to the scheme of the Hindu Marriage Act, a 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.

Therefore, 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 put endeavored to put the appellant’s mind at ease and observed that 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. The Court referred to another prior decision of the Hon’ble Supreme Court in Smt.Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562 where the question with respect to the execution of a decree for restitution of conjugal rights was examined by the Supreme Court.

The appeal was dismissed and the Court held that 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. 

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