- In an important ruling titled Jinnat Fatima Vajirbhai Ami vs. Nishat Alimadbhai Polra the Hon’ble Gujarat HC has held that a wife cannot be forced to live with her husband even by way of a court's decree. The court made this observation while hearing a plea filed by the husband for the restitution of conjugal rights.
- In the instant case, a plea for restitution of conjugal rights was filed before the Banaskantha District Family Court. It was contended that both the parties, who are muslims, got married in 2010. A son was born to them in 2015. In 2016, the wife left her matrimonial home along with the minor son without any reason, and refused to come back.
- It was the wife’s contention that her in-laws were forcing her to move to Australia against her wishes, to become a nurse and money, and this was her reason to leave her home in 2017.
- The Family Court, after hearing both the parties, granted the decree for restitution of conjugal rights. Aggrieved by this, the wife challenged this order in the HC.
- The HC, at the outset, said that geanting the decree for the restitution of conjugal rights does not merely depend upon the rights of the husband. The Court also said that the family court should have looked into the fact that granting the decree and compelling the wife to live with her husband would be equitable.
- The Court, while observing that the Muslim Nikah is essentially a contract, said that restitution of conjugal rights in this case is a specific performance of the contract. It is due to this reason that a decree for restitution (specific performance) is an equitable relief and it is within the Court’s discretion to grant or refuse the same.
- It was, thus, the Court’s opinion that if the granting of this decree would cause undue hardship to the wife, or if the husband is guilty of harassing his wife, the Court is empowered to refuse the same.
- Referring to Order XXI Rule 32(1) of CPC which provides that a decree for the restitution of conjugal rights can only be enforced by way of attachment of the property of the other party, there is nothing on record in the present case which indicates that the wife has any property of her own which can be attached in enforcement of this decree.
- In this light, the Court observed that the objective of the legislature behind the aforementioned rule is that no person can force a female or a wife to establish conjugal rights with the husband, if she refuses to do the same.
- Thus, the Hon’ble Court allowed the wife’s appeal and quashed the order of the Family Court.
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