Top News Headlines 31st Dec 2021: Wife Cannot Be Forced To Cohabit Even By A Court’s Decree

Wife Cannot Be Forced To Cohabit Even By A Court’s Decree: Gujarat HC On RCR

• 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.

Gestational Agreements Not Barred: Delhi Court Declares Couple As Biological Parents Of Their Surrogate Child

• Stating that there is no law which bars parents from entering into gestational agreements, Civil Judge Chitranshi Arora of the Saket Court has declared a couple as the legal and biological parents of a surrogate child.
• The Court observed that while there is no law barring gestational agreements, ICMR guidelines regulate surrogacy arrangements in India. It isin those guidelines that it is clearly provided that the child would be considered the legitimate child of the couple who have chosen surrogacy. That child would have all the rights of parentage, support and inheritance.
• In the instant case titled Ashish Wadhwa and Anr vs. Chaphala Haladar and Anr., the couple has entered into an agreement with the defendant that she would be the surrogate mother of their baby with the consent of her husband, and would not be biologically related to the child. It was further agreed between the parties that the defendants would have no say and would raise no objections to the intended father and mother to be the sole custodian of the child.
• The agreement was carried out. A baby girl was born through IVF and was handed over to the plaintiffs. While there was no dispute over the fact that the plaintiffs were the biological parents of the child, it was their contention that the defendants might claim custody of the baby in the future. It was under this apprehension that the plaintiffs filed a declaratory suit under Order 12 Rule 6 of CPC and requested an injunction in their favour.
• The Court observed that the Contract between both the parties satisfies the conditions laid down in Section 10 of Indian Contract Act, meaning thereby that both the parties were competent to contract. In the instant case, there were no objections by the defendants to the same. Thus this agreement was legal and executable.
• In the light of the aforesaid contentions, the Court was of the opinion that the plaintiffs were entitled to a decree under Order 12 rule 6 of CPC. The Court also directed the defendants to not violate the terms of the agreement in the future.

No Compromise In Rape Cases: Andhra Pradesh HC Refuses To Set Aside Conviction

• The Courts of this country have time and again held a woman’s honour in a very high regard. It was in this light that the Andhra Pradesh HC has refused to set aside a conviction under 376 IPC on the grounds of a compromise entered into between the victim and the accused.
• The Court has also observed that rape is an offence against the society at large and therefore it cannot be left to the parties to enter into a compromise and settle the same.
• In the instant case, the accused was convicted by the Trial Court under sections 376, 342,417 and 420 of the IPC by the Court of Sessions, Vijayawada, for raping the woman. Thereafter, the woman filed an IA in the High Court stating that she fell in love with the accused and wanted to marry him but due to some reasons, that could not happen.
• She further stated that due to some misunderstanding, she filed a report against the accused, but later after the intervention of her family and some elders, they were scolded and were asked to put an end to all these ill feelings in order to lead a peaceful life. It was due to this reason that the victim approached the HC to set the conviction aside.
• It was argued that both the victim and the accused were close friends, they fell in love and had decided to get married, but for some reasons that could not happen and thus the present case was filed.
• The Hon’ble HC relied upon the decision of the Hon’ble Supreme Court in State of Madhya Pradesh vs. Madan Lal (2015) SCC, in which the Court had observed in stringent terms that the offence of rape suffocates the breath of life and sullies the reputation. The dignity of a woman is a part of her non-perishable and immortal self and no one should ever think about painting it in clay. There cannot be a compromise as it would be against her honour which matters the most.
• In light of this view of the Apex Court, the HC observed that since the accused has been convicted of the offence of rape under 376 IPC, the issue of compromise does not arise.
• The Court also noted that the question of any misconception dolled out to the victim, or a promise of marriage which was false since it’s inception, or whether the physical relationship consensual, can be only gone into while deciding the case on it’s merits and not under the present application and since the accused has been convicted by the trial court, no question of compromise will arise.