ORDER
R.P. Sethi, J.
1. Besides passing a decree for the restitution of conjugal rights the District Judge, Kathua directed that the respondent-wife would be entitled to receive the articles claimed by her or in the alternative a sum of Rs. 20,000/- from the petitioner-husband The decree for restitution of conjugal rights in terms of section 9 and direction for the recovery of articles or payment of the amount in terms of Section 33 of the Hindu Marriage Act was passed against the petitioner-husband ex parte on May 25, 1984. The respondent-wife filed an application for the execution of the decree of the trial court on January 22, 1986 and prayed for the recovery of the amount objected to the execution of the decree on the amount decreed in her favour. The petitioner-husband objected to the execution of the decree on the ground that the same was a nullity and had not been passed under the provisions of law. It was further submitted that no directions under Section 33 of the Hindu Marriage Act (hereinafter called the ‘Act’) could be issued in a petition filed under Section 9 of the said Act for seeking the relief for the restitution of conjugal rights. The learned District Judge, Kathua vide the order impugned in this Revision Petition rejected the pleas of the petitioner-husband and held that the provisions of Section 33 regarding the disposal of the property were applicable in all proceedings under the Act. He further held that the proceedings contemplated by the aforesaid section also include within amplitude the proceedings under Section 9 of the Act.
2. No one appeared for the petitioner. However I have heard the learned counsel for the respondent-wife and have also perused the record of the court below.
2A. Before deciding the scope and applicability of Section 33 in proceedings under Section 9 of the Act for the restitution of conjugal rights the concept of Hindu Marriage and the scheme of the Act has to be analysed. The concept of the Hindu Marriage in the result of the evolution of long experience, dogmas and thoughts spread over centuries. Marriage under Hindu law was never considered a contract between man and wife but a holy sacrament enjoined by religion for purifying the body and regeneration of man. Hindu marriage is a sanskar as conceived in Yjanvalkya Smriti and is distinguished from Christian or Muslim marriage. The Hindu marriage is thus ”once a marriage always a marriage” Fundamental concept underlying the law of marriage amongst Hindus is that marriage is regarded as a sort of sacrament and not a matter of free contract between the parties. AIR 1969 SC 993. fsic) On the recommendation of a committee appointed by the Government of India in 1941 a report was submitted to the Central Legislative Assembly on February 21, 1947 on the basis of which Hindu Code Bill was introduced in the Assembly which was later referred to select committee and ultimately the Hindu Marriage Act was passed by the Legislative which conferred certain rights on the parties to a Hindu Marriage but the basic concept of the marriage was never changed. The scheme of the Act stressed for continuance of the relationship of marriage between the parties so far it was possible and dissolving the marriage only in a case where it was found that living of the spouse together was not possible under any circumstances.
3. Section 9 was incorporated in the Act with the object of forcing the parties to live together who had developed strained relations on account of ordinary wear and tear of matrimonial family relations. The term “restitution of conjugal rights” was not known to Hindu law. While Hindu law laid down the duty on the wife of implicit obedience to her husband; it did not provide any procedure such as compulsion by courts to force her to return to him against her will. It was for the first time in Dadaji Bhikaji v. Rukmabai (1886) ILR 10 Bom 301 that the Civil Court held that jurisdiction over conjugal rights amongst the Hindus. The provision of restitution of conjugal rights was made in Section 9 of the Act with the object of maintaining and continuing relationship of husband and wife between the parties to a Hindu marriage. When the provision of Section 9 of the Act was challenged on the ground that a decree for restitution of conjugal rights amounted to coerce through judicial processthe unwilling party to have set against one person; consent and free will with the decree-holder which amounts to degrading the judgment-debtor to human dignity and monstrous to human spirit. It was held in AIR 1984 Del 66 that the Restitution Decree in the scheme of the Act was a preparation for divorce if the parties do not come together. The Legislature did it with the object of coaxing and cajoling with the drawing spouse to return to cohabitation as the object of the restitution decree was to bring about cohabitation between the estranged parties so that they can live together in the matrimonial home in amity. From the definition of cohabitation and consortium it appears that sexual intercourse was one of the elements that goes to make up the marriage. The restitution decree did not amount to forcing a person to have sex-against his or her consent but intended to rehabilitate the matrimonial ties between the parties in the marriage for the purposes for which a Hindu marriage is solemnized.
“The Indian legislature believes that there should not be a sudden break of the marriage tie. It believes in reconciliation. It believes that cooling of period is not only desirable but essential. This is why it allows husband and wife time to come together to the conjugal fold — Section 9 is a provision designed to encourage reconciliation…..”
This clearly shows that the stress of the Legislation is on the continuance of the matrimonial ties and the provisions have been made in the Act for achieving the said object.
4. It is true that Section 33 of the Act provides that in any proceedings under the Act the Court may make provision in the decree as it deems fit and proper with respect to any property presented to the parties at or about the time of marriage. A bare reading of this section shows that a duty is cast upon the court to make the provision of such property which is deemed to be just and proper under the circumstances of the case. The “proceedings” contemplated for the purposes of Section 33 would be determined by having reference to the concept of the marriage, the object of the enactment of the Hindu Marriage Act, the scheme of the Act and the purpose sought to be achieved by the proceedings initiated by any one of the parties. Any application filed under the Act would not and cannot be termed to be a ‘proceeding’ for the purpose of this Section. As the ‘proceedings’ have not been defined under the Act it has to be interpreted keeping in view the circumstances narrated herein-above. Proceedings contemplated for the purpose of the grant of maintenance would be different as distinguishable for the purpose of the disposal of the property and the custody of the children. The court while passing the decree for restitution of conjugal rights would not be justified in directing the spouse to live with and share the bed with the decree-holder but partition of the property by handing over the same to the decree-holder. The purpose of the Act and decree for restitution of conjugal rights would be defeated if contradictory provisions are made in the decree itself. When the parties are desired to live together and decree is passed for that purpose, it cannot be justified to direct them to live under strained relations. Parties cannot live together under compulsion, force of law or under the sword of coercive provisions made in the decree itself which would amount to breaking of the matrimonial relations between the parties. The word ‘any proceeding’ under Section 33 of the Act would therefore not mean a proceeding under Section 9 of the Hindu Marriage Act for the purpose of granting relief to a party with respect to the disposal of the property.
5. It is, therefore, held that no order under Section 33 of the Act can be passed in proceedings under Section 9 of the said Act particularly when the parties have been directed to live together by passing a decree of restitution of conjugal rights in favour of one of the parties.
6. Mr. Bhat the learned counsel appearing for the respondent has argued that the order of the subordinate court cannot bedisturbed because the same was passed while executing a decree which was final and had not been appealed against. It is further submitted that as the executing court could not go beyond the decree, it had no option but to execute the same in the manner provided in the decree itself. The settled principle of law is that in execution proceedings the court cannot go beyond the terms of the decree and has to execute the same in letter and spirit as per directions contained therein. If however the decree is passed without jurisdiction the executing court has a right to refuse to execute the same by holding it to be a nullity. In the instant case the decree passed by the trial court is so far as it pertains to the directions under Section 33 of the Hindu Marriage Act is concerned was without jurisdiction and a nullity which could be refused to be executed by the executing court. As the lower court did not have the jurisdiction to pass a direction under section 33 of the Act. It is held that the decree to that extent was a nullity and the executing court was under an obligation to examine it and refuse to execute the same. It is also pertinent to note that the respondent-wife appears not willing in the proceedings for the restitution of conjugal rights but is only interested in getting the amount awarded to her under section 33 as is evident from the execution application. No steps have been taken in execution of the decree for the restitution of conjugal rights for which recourse could be had to the other provisions of the Hindu Marriage Act and the Civil Procedure Code as contained in/Order 21 Rules 32 and 33 of the C P C.
7. Under these circumstances the revision petition is accepted and the order impugned is set aside. This order would however not prejudice the court in deciding the execution application for the restitution of conjugal rights and for taking further proceedings as already directed,
8. In view of this the order dated July 10, 1986 does not require any further extension and C. M. P. No. 252 of 1986 is disposed of.