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Order to co-habit cannot enforce intercourse: HC

Sexual intercourse cannot be enforced between an estranged couple by an order directing restitution of conjugal rights, which can “at the most” force them to live together, Delhi high court said on Friday.

A Bench of justices Pradeep Nandrajog and Pratibha Rani further clarified that if a spouse violates the order of restitution of conjugal rights continuously for a year, then such an order becomes a “stepping stone and passage towards divorce”.

“The object of decree for the 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 the Hindu Marriage Act, 1955. As per the scheme of the Hindu Marriage Act the decree for restitution of conjugal rights is a stepping stone and passage towards divorce,” it said.

“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 court said. The observation came on a 58-year-old woman’s plea against execution of a family court’s order directing restitution of conjugal rights, as she did not want to have any physical relationship with her husband.

The Bench said “the apprehension in the mind of the appellant (woman) that if the decree is executed she will be forced to have cohabitation with her husband, is a mistaken notion”.
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