Restitution Of Conjugal Rights- "Can't Force Wife To Cohabit With Husband Even By A Court's Decree": Gujarat High Court

In an important ruling, the Gujarat High Court has observed that in a suit filed by the husband for restitution of conjugal rights, a woman cannot be forced to cohabit with her husband even by way of a court's decree.

This assertion came from the Bench of Justice J. B. Pardiwala and Justice Niral Mehta while overturning a family court's order under which a Muslim woman was directed to go back to her matrimonial home and perform her marital obligation with her husband.

The case in brief

Essentially, it was the case of the respondent-husband before the Family court (Banaskantha district in Gujarat) that his wife (with whom he performed Nikah in the year 2010) had left the matrimonial home along with their minor son on 20th July 2017, without any lawful ground and further even without informing anyone.

It was further argued before the Court that despite making quite a few attempts to persuade her to come back to her matrimonial home, such efforts had failed, and therefore, he had moved the Family court seeking restitution of conjugal rights invoking Section 282 of the Mohammedan Law.

Having regard to the pleadings of both the parties, the Banaskantha family court allowed the suit filed by the Husband and directed his wife to go back to her matrimonial home and perform conjugal obligations.

Challenging this very order of the Banaskkantha family court, the Woman had moved to the High Court averring that she was being pressurized to migrate and settle in Australia considering that she is a qualified nurse and she may be able to secure a good job in Australia and that since she was against such idea of her husband and her in-laws, she had left her matrimonial house in the year 2017.

Court's observations 

At the outset, the Court observed that the decision in a suit for the restitution of conjugal rights does not entirely depend upon the right of the husband and that the Family Court should also consider whether it would make it inequitable for it to compel the wife to live with her husband.

Further, the Court emphasized that a marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than enforcement of the right to a consortium under this contract (specific performance of a contract).

Agaisnt this backdrop, the Court noted that a decree, for the specific performance of a contract (restitution of conjugal rights), is an equitable relief and it is within the discretion of the Court to grant or refuse it in accordance with the 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."

Further, the Court also referred to Order XXI Rule 32(1) and (3) CPC, which provides that a decree for restitution of conjugal rights cannot be enforced except by way of attachment of the property of the other party or compensation and mense profits.

"The object behind Order XXI Rule 32(1) and (3) CPC is that no person can force a female or his wife to cohabit and establish conjugal rights. If the wife refuse to cohabit, in such case, she cannot be forced by a decree in a suit to establish conjugal rights," the Court added as it noted that in the instant case, there is nothing on record to indicate that the appellant-wife has a property of her own which could be attached.

With this, the court allowed the appeal filed by the wife, and thus, the impugned judgment and decree passed by the Family Court at Palanpur, District: Banaskantha dated 07.07.2021 was quashed and set aside.

Also, the Family Suit instituted by the husband for restitution of conjugal rights invoking Section 282 of the Muhammadan Law was, therefore, dismissed.

Case title - JINNAT FATMA VAJIRBHAI AMI W/O NISHAT ALIMADBHAI POLRA v. NISHAT ALIMADBHAI POLRA

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