Order For Cohabitation Can’t Enforce Sexual Relations Between Husband, Wife: Delhi HC [Read Order]

The Delhi High Court in Sudha Gupta v. Har Prasad Gupta, has clarified 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.

The judgment delivered by the bench comprising Justice Pratibha Rani and Justice Pradeep Nandrajog 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.

In the case, Sudha Gupta (wife) and Har Prasad Gupta (husband) were about 35 years old when they got married in 1993. The wife allegedly dispensed duties of a sister while ignoring those of a wife, as she was close to her brother and took care of his kids, but didn’t pay any attention to her husband.

She alleged that the marriage wasn’t consummated because her husband was physically weak and they had lived together for 10 years without any physical relations.

Sudha Gupta’s counsel and brother Om Saran Gupta submitted that the relationship between the parties is so strained that the appellant is not willing to join the company of her husband and resume cohabitation.

The court, however, held that the apprehension in the mind of the wife was that if the decree is executed, she would be forced to have cohabitation with her husband, is a mistaken notion.

It was opined that 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, it was concluded that 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.

After careful examination, the court found no merit in the appeal and said:

“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.”

Read the Order here.