2025:KER:29735 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN & THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 MAT.APPEAL NO. 118 OF 2025 JUDGMENT DATED 06.08.2024 IN OP NO.1222 OF 2022, FAMILY COURT, MALAPPURAM APPELLANT/PETITIONER IN OP: MUHAMMED RASHAD, AGED 31 YEARS S/O. UZHUNNAN AHAMMEDKUTTY, UZHUNNAN HOUSE, MAITHRA POST, THACHANNA, MALAPPURAM DISTRICT –673639, REPRESENTED BY POWER OF ATTORNEY HOLDER AHAMMED KUTTY, AGED 59, S/O. SAIDALAVI, UZHUNNAN HOUSE, MAITHRA POST, THACHANNA, MALAPPURAM DISTRICT, PIN – 673639. BY ADV. E.C.AHAMED FAZIL RESPONDENT/RESPONDENT: SHANA NASRIN, AGED 24 YEARS, D/O. ABDURAHIMAN, KONNOLATH KALATHINKAL HOUSE, CHERUVADI POST, KODIYATHOOR AMSOM DESOM, MAVOOR VIA, KOZHIKODE DISTRICT, PIN – 673661. BY ADV SALIL NARAYANAN K.A. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 07.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:29735 MAT.APPEAL NO. 118 OF 2025 -2- JUDGMENT Devan Ramachandran, J. The appellant challenges the judgment of the learned Family Court, Malappuram, dated 06.08.2024, which dismissed OP No.1222/2022; thus declining his prayer for restitution of his conjugal rights with the respondent. 2. Interestingly, Sri.Ahamed Fazil E.C. - learned counsel for the appellant, expressly conceded that his client is in Portugal and that his travel permits have now expired, thus making it impossible for him to come to India in the foreseeable future. He added that his client may, nevertheless, be in a position to come to India on an “Emergency Certificate”; but that he would require orders from this Court for such purpose. 2025:KER:29735 MAT.APPEAL NO. 118 OF 2025 -3- 3. Sri.K.A.Salil Narayanan – learned counsel for the respondent, in response, submitted that his client is not interested in either restituting the conjugal rights, or in living with the appellant, since the matrimonial strife between them has now crossed any chance of repair. He contended that this Appeal is mala fide because, the appellant remains outside India and seeks restitution, which is practically impossible. 4. We must say that there is force in the afore submissions of Sri.K.A.Salil Narayanan. 5. That apart, restitution is a mechanism that ought to be used, in our view, prudently because, the intent of the parties in a conjugal relationship and their desires are paramount. The attempt to force one party into a conjugal union, contrary to his/her wishes, would draw no 2025:KER:29735 MAT.APPEAL NO. 118 OF 2025 -4- practical result because, in such case, party seeking such would obtain no access to the soul or affection of the former. 6. In the case at hand, the situation is far more difficult because, the appellant remains in Portugal, admittedly, without any chance of return to India immediately. As noticed above, he says that he may be able to return with an “Emergency Certificate”, but this again is a matter of speculation. 7. That being said, since the learned counsel for the respondent makes it unequivocally clear to us that his client cannot stay with the husband, or reinstate the conjugal rights between them, we are certain that the impugned order requires to be intervened with, though every other remedy that may be available to the appellant being left open to him. 2025:KER:29735 MAT.APPEAL NO. 118 OF 2025 -5- In the afore circumstances, we dismiss this Appeal and confirm the judgment of the learned Family Court; however, reserving every liberty and remedy that may be available to the parties in law, to be pursued by them in future. Sd/- DEVAN RAMACHANDRAN JUDGE Sd/- M.B.SNEHALATHA akv JUDGE