Restitution of Conjugal Rights

RESTITUTION OF CONJUGAL RIGHTS

Author: Anamika M J, National University of Advanced Legal Studies, Kochi

Certain principles of civil law like equality have been included by the judges in the matrimonial matters irrespective of the religion. Remedy for restitution of conjugal rights is available for different communities. Muslim law allows judge remedies for restitution of conjugal rights under general law.  The remedy was adopted from English law during the British administration.

The conceptualization of the provision of  restitution of conjugal rights under Muslim law by Tayabji is “where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, may put either party on terms securing to the other the enjoyment of his or her rights.”[1]

INCORPORATION OF THE REMEDY

In India, the courts have recognized the restitution of conjugal rights 1867 after the decision in Moonshee Buzloor Ruheem v Shumssonissa Begum[2], it was held that when a wife without lawful reasons ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights. Even before this case, the courts have recognized the restitution of conjugal rights in Maulvi Abdul Wahab v Hingu[3].

In the case of Moonshee Buzloor Raheem, the husband disposed of the property of his wife and misbehaved with her. She was compelled to withdraw from society. The husband sought the recovery of his wife under the Specific Relief Act. The wife contended that neither the Islamic laws nor the principles of justice permitted the custody of his wife. In the appeal, the husband claimed that under Islamic law a wife did not have the right to live separately even if the husband misbehaved. It was clarified that the suits for restitution have to be carried out under the Muslim law and the equity and good conscience were used only to supplement the Muslim law where texts were not available.

AVAILABILITY OF THE REMEDY

The fundamental principle of the matrimonial law is that one spouse is entitled to be part of the society of the other. The remedies for withdrawing from society are the same for both spouses. The remedies are available for both of them. For a long time, husbands had a dominant position in filing restitution of conjugal rights since, when a wife files for the remedy the husband would frustrate the claim by pronouncing talaq. In Mohammad Ali v Fareedunissa Beegum[4], the dominant power of the husband to divorce the wife and enjoy the favoured treatment to the detriment of the wife was reiterated. In this decision, it was observed that Mohammedan law permits special rights in the matter of divorce and the husband enjoys a privilege that is denied to his spouse. In such a situation, effect shall be given to it without importing notions of discrimination or divorce laws applicable to Hindu and Christian laws.

NATURE OF SUIT FOR RESTITUTION OF CONJUGAL RIGHTS

Since the marriage under Muslim law is a contract, the suit for restitution of conjugal rights is a civil suit and is filed under Section 9 of the Civil Procedure Code. The suit is filed for the breach of contract that existed between the husband and wife and for the specific performance. The court enforces all obligations that follow through the breach of a contract. The court grants relief on the grounds it finds just and equitable. 

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RESTITUTION NOT AN ABSOLUTE RIGHT

The right to seek the remedy is not absolute. The remedy available to the spouses is discretionary. It depends on the court to decide whether the claim made is bonafide or malafide. In Abdul Khadir v Salima[5], the court has laid down that in a suit for restitution of conjugal rights, the courts in India will function as mixed courts of equity and guided by the principles of Equity in English jurisprudence. The conduct of the party asking for specific performance of the marriage is also taken into consideration. In Raj Mohammed v Saeeda Amina Begum[6], the court observed that justice should not be frustrated by evil designs. The restitution of Conjugal rights does not entirely depend on the husband and justice should not be inequitable and must not compel the wife and it should also conform to the modern social conditions. The litigants’ nature of the conduct is also crucial for the decision.

ESSENTIAL REQUIREMENT TO SEEK REMEDY

The essential requirement to seek remedy is similar to that mentioned in section 9 of the Hindu Marriage Act. One spouse has withdrawn from the society of the other or has neglected to perform the obligation of marriage. The withdrawal from society must be without a reasonable excuse or lawful ground. If there is a reasonable ground for the withdrawal then the remedy is not granted. There should not be any legal bar to grant the relief. If the marriage has been dissolved by Talaq or by the exercise of the option of puberty, then the remedy cannot be sought as it acts as a legal bar. The court must be satisfied with the truth of the claim before granting relief. The parties are given opportunities to deny or prove the allegations. The allegations must be proved beyond a reasonable doubt.

REASONABLE EXCUSE IN CASES FOR RESTITUTION OF CONJUGAL RIGHTS

As the husband enjoys a dominant position in Muslim law. The suit for restitution of conjugal rights is mostly filed by the husband. The wife pleads many defences as the reason for withdrawing from society. The excuses which are accepted by the courts are mentioned below.

  • CRUELTY

In Muslim law, the Hedaya does not entitle a wife to seek dissolution of marriage on the ground of cruelty by the husband. In the case of Munshee Buzloor Ruhim, the cruelty by her husband was observed as a valid defence. As cruelty is a dynamic concept, not only physical cruelty but metal cruelty was also considered. In Hussaini Begum v Mohammed Rustam Ali, it was contended by the wife that due to the enmity subsisting between them, her life was in danger in the matrimonial home.  She has alleged immorality on the part of the husband who has charged adultery against her. It was held as a valid defence. In Hammid Hussain v Kubra Begum[7], the wife was not physically ill-treated, but she was not physically ill-treated, but she was subjected to mental cruelty. The suit for restitution was brought just to take over her property. It was held that to constitute cruelty actual violence or reasonable apprehension is not necessary. Polygamy is permissible in Islam. The judicial decision in Itwari v Asghari[8] laid down that the act amounts to cruelty towards the first wife. In this case, the husband took a second wife as a consequence to which the first wife refused to live with him. The husband filed for restitution of conjugal right and the court observed that the very act by the husband amounts to cruelty. In Raj Mohammed v Sayeeda Amina Begum[9], the High Court considering the judgement in Itwari v Azghari, pointed out that in the absence of cogent explanation, the taking of the second wife by the husband amounts to cruelty. Under Muslim law polygamy accepted, but there must be equality of treatment. No woman can apply for dissolution of marriage on the grounds of the second marriage. But after the decision in Itwari, the wife could file for divorce under this ground. 

  • In Shahina Praveen v M Shakeel[10], the wife filed a second appeal against the appellate order of the Additional District Judge, Delhi. The Additional District Judge reversed the order of the trial Judge. The Court dismissed the husband’s suit for restitution of conjugal rights. In this case, the court observed that the institution of criminal cases by the husband against his wife and their vigorous pursuit against the wife and his relations amounts to cruelty and raises a reasonable apprehension in the mind of the defendant that in case if she is forced to live with her husband, her life will be in danger. The Court also held that it was a reasonable and fit case of cruelty under section 2 of the Dissolution of Muslim Marriage Act 1939. It has also become the rule of law that a decree of restitution of conjugal rights obtained by the husband does not come in the way of the wife’s right to claim maintenance.
  • NON-PAYMENT OF DOWER

Non-payment of dower is a valid defence under Muslim law. Before consummation, the wife can refute the cohabitation on the non-payment of the dower. The wife is entitled to refuse the conjugal intercourse even after the consummation of the marriage according to Abu Hanifa while Muhammed and Abu Yusuf, disciples of Hanifa are of the view that the wife cannot refute after the consummation of the marriage. Before Abdul Kadir v. Salima[11]case, non-payment of prompt dower was held to be sufficient ground for refusing Restitution of Conjugal Rights even after the consummation of the marriage. In Nasrat Hussain v. Bamidan[12], the remedy was refused to the husband on the ground of non-payment of dower even though the marriage had been consummated. For the first time in the Abdul Kadir v. Salima case, Mahmood J., held that the views of the disciples were preferred. All the previous judgments were overruled.

  • FALSE CHARGE OF ADULTERY

If a husband charges his wife with immorality and adultery, the wife is justified in refusing to live with the husband.

  • EXPULSION OF HUSBAND FROM CASTE

In Bai Jina v Kharwah Jina[13], where the husband was expelled from the community, the Bombay High Court refused to grant a decree for restitution of conjugal right against the wife. Expulsion from the community was considered as a valid defence.

  • LIAN AND ZIHAR

After lian and Zihan, the spouses are not supposed to cohabit. The wife is entitled to live separately. If the husband sues for remedy, lian and Zehan can be considered as an effective defence.

  • NON EXISTENCE OF MARRIAGE

The existence of marriage is a condition precedent for the remedy. Thus, the non-existence of marriage is a valid defence. In the absence of proof, the decree can be passed in favour of the husband. If the marriage is irregular, the husband is not entitled to claim the remedy even after the consummation of the marriage.

  • ANTE OR POST MARRIAGE AGREEMENT

A valid agreement entered into by parties before or after the marriage can be valid defences. Void Agreements cannot be used as a defence. In Muhammad Amin v. Mst. Amina Bibi[14], an agreement, made before or after the marriage, which authorised the wife to divorce herself from her husband under specified conditions was held to be valid, provided the conditions are reasonable and not opposed to the policy of Muslim Law.  In Sabed Khan v Bilatunissa[15], after marriage, the husband executed a Kabinnama in which the wife was given the right to leave her husband’s house and to live elsewhere on two contingencies first, ill-treatment by the husband or by any other inmate of his house, secondly, any sort of difference or disagreement with the husband or his family members. It was found that the wife was subjected to ill-treatment. The court observed that the condition authorizing a Mohammedan wife to leave her husband’s house on ill-treatment was not opposed to the principles of Mohammedan Law, and disallowed the husband’s suit.

INVALID DEFENCES IN RESTITUTION OF CONJUGAL RIGHTS

There are several defences which were held by the court to be invalid. In Jamiruddin v Saheba[16], the husband charged the wife with adultery and the charge was proved to be true.  To refuse relief to a plaintiff in a case where a true charge of adultery has been made will be to put a high premium on adultery and immorality. In Ali Akbar v Fatima Begum[17]the wife could not pull on with her mother-in-law. The court refused this argument as it was not valid. In Khatun Bibi v Rajjab[18], the husband refused to live with the wife at her father’s home after the marriage as there was an antenuptial agreement. The court held that such an agreement was not valid. In Mustafa Begum v Mirza Kazim[19], it was held by the court that the wife cannot claim incompatibility of temperament between parties as a reasonable argument for withdrawing from the society of the spouse. 


[1]https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/

[2] Moonshee Buzloor Ruheem v Shumsoonissa Begum, (1867) 1 MIA 551.

[3]Maulvi Abdul Wahab v Hingu,

[4] Mohammad Ali v Fareedunissa Begum, AIR 1970 A.P 298.

[5] Abdul Khadir v Salima, (1886) 8 All 149.

[6] Raj Mohammad v Saeeda Amina Begum, AIR 1976 Kant 200.

[7] Hammid Hussein v Kubra Begum, (1980) 40 All 432.

[8] Itwari v Asghari, AIR 1960 All 684.

[9] Raj Mohammed v Sayeed Amina Begum, AIR 1976 Kant 200.

[10] Shahina Praveen v M Shakeel,

[11] Abdul Kadir v Salima,

[12] Nasrat HUssain v Bamidan,

[13] Bai Jina v Kharwah JIna, 31 Bomb 366.

[14] Muhammad Amin v Amina Bibi, AIR 1931 Lah. 134.

[15] Sabed Khan v Bilatunissa, (1919) 25. C.W.N 888.

[16] Jamiruddin v Saheba, AIR 1927 Cal. 579.

[17] Ali Akbar v Fatima Begum, AIR 1929 Lahore, 310.

[18] Khatun Bibi v Rajjab, AIR 1926 All 615.

[19] Mustafn Begum v Mirza Kazim, AIR 1933 Oudh. 15.

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