Shailendra Koshti vs Smt. Kavita Koshti

Arun Mishra, J.—This writ petition has been preferred by the petitioner as against an order passed by the Family Court, Jabalpur, refusing to execute the decree for restitution of conjugal right.

Petitioner Shri Shailendra Koshthi has filed an application u/s 9 of Hindu Marriage Act before the Family Court, Jaipur, Rajasthan, in which an ex parte order was passed ordering the restitution of conjugal right as against the respondents. Decree was sought to be executed at Jabalpur as against the property of the respondents. The Family Court, Jaipur has transferred the decree for execution under Order 21 Rule 6 of the CPC.

Reply was filed by respondent wife Smt. Kavita Koshthi contending that restitution case was filed in order to create pressure. She has filed a case u/s 498A of IPC as against petitioner, his parents and brother, which is pending at the Jabalpur Court in which the prosecution case is already over. Case is at the final hearing stage. In that case, on being found guilty, there is likelihood of conviction being recorded. In order to put pressure, execution of decree of restitution of conjugal rights has been sought. An application u/s 13 of Hindu Marriage Act is also pending consideration for divorce. Case u/s 306 of IPC was also pending. Case has also been filed by the petitioner as against respondent/wife for commission of offence under Sections 420, 467 and 468 of IPC, which was also pending. Considering the background of aforesaid criminal cases, it was prayed that there is sufficient cause not to live together, hence execution be declined.

The learned Family Court as per the impugned order in the backdrop of the fact and pendency of several criminal cases, has come to the conclusion that the reason for refusal to reside together is reasonable. Petitioner cannot be compelled under the circumstances to join the society of the decree-holder, therefore, execution application has been filed.

Shri N.C. Beohar, learned Counsel appearing for the petitioner has submitted that there is likelihood of amicable settlement between the parties as such restitution should be ordered. He has relied upon the decision of the Apex Court in Smt. Saroj Rani Vs. Sudarshan Kumar Chadha, .

Shri S.K. Dubey, learned Counsel appearing for respondents has submitted that no case for interference is made out in this writ petition as there is just and reasonable cause to reside separately and respondents cannot be forced to live with the petitioner in the backdrop of the strained relationship between the parties and owing to the pendency of several criminal cases against each other.

Decree of restitution of conjugal rights can be executed as against the property of party refusing to comply with it without there being reasonable cause. The Apex Court in Smt. Saroj Rani v. Sudarshan Kumar Chadha (supra), held thus:

It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights, the sanction is provided by Court where the disobedience to such a decree is wilful, i.e., is deliberate, in spite of the opportunities and there are no other impediments, might be enforced by attachment of property. So the only sanction is by attachment of property against disobedience of a decree for restitution of conjugal rights where the disobedience follows as a result of a wilful conduct, i.e., where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only financial sanction, provided he or she has properties to be attached, is provided for. This is so as an inducement by the Court in appropriate case when the Court has decreed restitution for conjugal rights and that the Court can only decree if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live together in order to give them an opportunity to settle up the matter amicably. It serves a social purpose as an aid to the prevention of break up of marriage. It cannot be viewed in the manner the learned Single Judge of Andhra Pradesh High Court has viewed it and we are therefore, unable to accept the position that Section 9 of the said Act is violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of its execution in cases of disobedience is kept in view.

In view of the aforesaid dictum, it is clear that in case there is reasonable cause not to live together after restitution of conjugal rights decree, parties cannot be forced to live together and execution of the decree can be declined. In the instant case, when facts are considered, case of dowry prohibition has reached the advance stage against the petitioner, his parents and brother, evidence has already been recorded, yet another case u/s 306 of IPC is pending consideration against husband and husband has also filed case under Sections 420, 467 and 468 against the wife and case for divorce filed by wife is also pending. Thus, in the circumstances it cannot be said that refusal to live together is not based on reasonable cause. There is reasonable cause to live separately, hence the learned Family Court is right in not executing the decree, thus I find no merit in this petition. The submission of the learned Counsel for the petitioner that there is likelihood of amicable settlement, hence parties may be ordered to live together, nothing prevents parties to reach the amicable settlement at any stage of the proceedings, as in pending cases compromise can always be entered into as and when it is reached.

I find no ground to interfere in the order which has been passed. Consequently writ petition being devoid of merit, is hereby dismissed. No costs.