Muslim Marriage – Restitution of conjugal rights & Defences

Muslim marriage; Restitution of conjugal rights & Defences

In the famous case ” Abdul Kadir V. Salima (1886), Court held that, “Muslim marriage is a civil contract between bride and groom. The concept of Muslim marriage is closely related to the concept of contract because some terms and conditions should be fulfilled for a valid/ Salih marriage like a valid contract. In India there is no specific statute to regulate Muslim marriages, it is according to the personal law Shariat. The Muslim Personal Law (Shariat) Application Act, 1937 simply states that with regard to marriage, succession, inheritance, and charities, Muslims are governed by their law (Sharia)t. However, the Dissolution of Muslim Marriage Act, 1939, provides for certain grounds for divorce available to Muslim women. The Muslim Women (Protection of Rights on Marriage) Act, 2019 criminalizes talaq.

Sources of Muslim law

  • The Quran:

The holy book containing the direct revelation of God through prophet Mohammed

  • Sunna an Hadis

It is the practice and tradition. The precedent by the Prophet is also included in the source.

  • Ijma

Opinion of religious jurists

  • Qiyas

Analogical deduction from the existing source 

  • Legislation

Legislation is including  Dissolution of Muslim marriage act 1938

  • Judicial decision 

The decision or precedents by the court on the various related incident.

There are three types of marriage 

  • Valid marriage

Conditions are full filled

  • Void marriage

Marriage from absolute prohibition is Void.

  • Fasid / irregular marriage

Irregular marriage is a marriage that is neither valid nor void. An irregular marriage has no legal effect before consummation. After consummation wife is entitled to get a dower.

Restitution of conjugal rights

Restitution of conjugal right is one of the reliefs that is provided to the spouses who are in agony in the institution of marriage. any of them fails to fulfill such obligation or deliberately avoid Co- habitation then the other party can approach the court. Restitution of conjugal right is also known as the ‘Right to stay together.

Muslim law if the husband either deserts the wife or neglects to perform his marital obligation without any proper reason then the wife can approach the court. Husband can approach the court for restitution of conjugal right.

Jani and others V.Mohammed Khan(AIR 1970 J&K 154), in this case, the court held that a husband is entitled to a decree for restitution conjugal if the wife has refused to live with him.

If a person wants to file a suit for restitution of conjugal right, either the spouse has withdrawn him or herself from the society of other, without any reason.

Moonshee Bazloor V. Mohammed Khan( 1867)MIA55

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The court held that, if a wife without lawful causes ceases to cohabit with her husband, he nay sue the wife for restitution of conjugal right.

In Muslim law, when a suit filed by the husband for the restitution of conjugal right the wife can defend the suit on the following ground

Defenses

1) Validity of marriage

If there is no valid marriage (terms and condition of marriage not fulfilled) wife can defend the suit on the ground of no valid marriage. In this defense, a decree of the court will not grand favor to the husband

In the famous case Bakh Bivi V. Quain Din

A Muslim husband married Muslim women during the period of iddat. The consummation of marriage took place after the expiry date. His wife deserted the husband and he sued for restitution of conjugal right. Court held that the marriage is not valid, because the marriage takes place at the time of iddat. Decree for the conjugal right could not be passed in favor husband.

 2) False charge of adultery 

‘Husband makes a false charge on adultery against wife’, is a good defense for wife in a suit of restitution of conjugal right.

3) Legal cruelty

A wife can defend a suit for restitution of conjugal rights on the ground that the husband is guilty of cruelty. When the wife has a reasonable apprehension that her life is unsafe, the court will not compel her to live with her husband

Itwari v. Ashgari (AIR 1960AII 684)

In this case, the court held that, if a Muslim husband suit for restitution of conjugal right to his first wife after the second marriage, the court may not compel the first wife to live with him. 

 In Muslim law, a wife is not entitled to successfully defend a suit for restitution of conjugal right on the ground that her husband has another wife. But in some circumstances, the second marriage of the husband results in cruelty to the first wife. Muslim males can have four wives at a time. But Muslim women can have only one husband at a time

4) Non- payment of prompt dower

 In the case, Abdul Kadir V. Salima (1886)8AII 149

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Court held that there was no right in the wife to refuse to return to the husband after the marriage had been consummated on the ground that the dower is not paid.

If the husband has failed to pay the prompt dower on demand by the wife she can defend the suit.

 5) Impotency of husband

If the husband was impotent court will not compel the wife to live with him.

If the wife is not ready to cohabit with the husband, he can sue for the restitution of conjugal right. Indian Muslims are presumed to be Sunnis. Therefore Sunni law is applicable; unless the parties are proved to be Shias.

References

  • S. R. Myneni. Muslim Law, Asia Law House, 5th Edition.
  • Fyzee: Outlines of Muhammadan Law, 3rdEdition
  • Dissolution of Muslim marriage Act 1939

https://www.google.com/url?sa=t&source=web&rct=j&url=http://chdslsa.gov.in/right_menu/act/pdf/muslim.pdf&ved=2ahUKEwjRgpSFl4PxAhXI7nMBHahqDBUQFjABegQIGhAG&usg=AOvVaw1fzogCqWI8__J9R86wAeE_

Case laws

  • Abdul Kadir V. Salima (1886),

https://www.google.com/url?sa=t&source=web&rct=j&url=https://indiankanoon.org/doc/119342/&ved=2ahUKEwjz4Zv7l4PxAhUtgtgFHeYQDvgQFnoECAUQAQ&usg=AOvVaw0yoGd_ttIKjrJW0I0Zr6oy

  • Jani and others V.Mohammed Khan(AIR 1970 J&K 154),

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.casemine.com/judgement/in/56b495dd607dba348f0158a3/amp&ved=2ahUKEwjIvN6bmIPxAhVt_XMBHTX5D7AQFnoECAQQAQ&usg=AOvVaw1g72tC8vfDyIGWnh-9iC5q&ampcf=1

  • Moonshee Bazloor V. Mohammed Khan( 1867)MIA55

https://www.google.com/url?sa=t&source=web&rct=j&url=https://indiankanoon.org/search/%3FformInput%3Dmoonshee%2520buzloor%2520ruheem%2520v%2520shumsoonnissa%2520begum&ved=2ahUKEwjDn7jLmIPxAhW04nMBHQmnD7kQFnoECBEQAQ&usg=AOvVaw39RPamSKAaCPS3XBUTkWb5

  • Bakh Bivi V. Quain Din

https://www.google.com/url?sa=t&source=web&rct=j&url=http://www.the-laws.com/Encyclopedia/Browse/Case%3FCaseId%3D724391466000&ved=2ahUKEwjN8-CGmYPxAhVD8HMBHYUKCvIQFnoECAQQAQ&usg=AOvVaw1ytWNgbW1jRt361-YIL4n4

  • Itwari v. Ashgari (AIR 1960AII 684)

https://www.google.com/url?sa=t&source=web&rct=j&url=https://indiankanoon.org/doc/1456722/&ved=2ahUKEwiZ1IOcmYPxAhXjheYKHQqqAKMQFnoECBEQAQ&usg=AOvVaw02oMh6h3oD2yKc1TwofKcf

Author: Rashbana Thansi,
Govt. Law college Calicut, 3rd year LLB student

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