Husband can't force wife to have sex: Gujarat High Court 

Express News Service

AHMEDABAD: The Gujarat High Court has pronounced a significant verdict regarding marriage — no husband can force his wife to have sexual intercourse to establish marital rights.

The HC has pronounced the verdict in the case of a Muslim couple from a village in the Banaskanda district. The couple, which got married in 2015, has a son. The woman works as a nurse in Palanpur Civil Hospital. It is alleged that she left her father-in-law’s place with her son and went to her maternal home.

The woman alleges that her siblings live in Australia and that her in-laws and husband are forcing her to move to Australia. She also alleged that her in-laws wanted her to go to Australia so that her husband can also go to that country.

The woman’s husband had filed a case in the Palanpur Family Court seeking reinstatement of marital rights. The court had ordered the wife to stay with the husband.

The woman challenged the Family Court ruling in the High Court. A bench of Justices JB Pardiwala and Niral Mehta overruled the order of the family court directing the woman to stay with her husband and establish marital rights.

Reversing the Family Court’s order, the bench referred to various judgments and said that marriage between a Muslim man and a Muslim woman is a civil contract and the claim for restoration of marital rights is nothing but an exercise of the consortium’s right under this treaty.

Disobedience of a court order can be enforced by imprisoning the wife or confiscating her property. The court further said that suchan order could not be enforced unless the woman’s property was confiscated. But in this case, the woman has no property and therefore, the question of attachment does not arise.

The High Court referred to Order XXI Rule 32 (1) of the Civil Procedure Code and said that the purpose behind the provision of the law is that no person can force his/her spouse to have sexual intercourse and establish marital rights. If the wife refuses to have intercourse, she cannot be compelled by decree to establish marital rights.