Can a Muslim file restitution of conjugal rights

428 votes

A marriage between Muslims is a legal contract, and a case for restitution of conjugal rights is a way to enforce the right to physical intimacy and companionship under this agreement. A Muslim husband can under Section 282 of the Muhammadan Law file a case for the restitution of conjugal rights.
 
However, it's important to note that the decision in such a case isn't based solely on the husband's right to conjugal relations.

The wife can set up the following defences to a suit for restitution of conjugal rights: 

1. That the marriage between the parties was not a valid marriage or is no longer binding. The existence of a valid matrimonial relationship is an essential condition for a decree in the suit. If the marriage is not valid (i.e., either irregular or void) restitution will not be allowed. So also if subsequently, the marriage has terminated, for example by reason of the husband having become an apostate or by the exercise by the wife of the option, on attaining puberty, of repudiating her marriage or of a power to the wife to divorce, restitution will be refused. 

2. That the husband was guilty of legal cruelty. For legal cruelty, “there must be actual violence of such a character as to endanger personal health or safety or there must be reasonable apprehension of it. A simple chastisement on one or two occasions would not amount to such cruelty. The Mohammedan law on the question of what is legal cruelty between man and wife does not differ materially. A good deal of ill-treatment, even if it is short of cruelty, may amount to legal cruelty. If the Court is of opinion that by the return of the wife to the husband, her health and safety would be in danger. 

3. That the husband made a false charge of adultery against the wife. Restitution will not, however, be refused if the charge was true. 

4. That there was gross failure by the husband in the performing of the matrimonial obligations imposed upon him for the benefit of the wife. Cruelty is not the sole defence. The Mohammedan wife has got better rights than the English wife. The Court may well admit defences founded on the violation of those rights. Conduct falling for short of legal cruelty (e.g. charges of immorality and heaping of insults) may be a good defence to a suit by the husband. In fact any reprehensible conduct on the part of the husband affords grounds for refusing to him the assistance of the Court. Expulsion of the husband from caste has been held to be sufficient ground for refusing restitution of conjugal rights. But the mere fact that the wife cannot get on with mother of the husband would not be sufficient ground. 

5. That, where the marriage has not been consummated, her prompt dower has not been paid. This would be a means for securing the payment of dower by the husband. High Court elaborated stating that in a suit for restitution of conjugal rights by a Muslim husband against his wife, if the Court after a review of the evidence feels that the circumstances reveal that the husband had been guilty of unnecessary harassment caused to his wife or of such conduct as to make it inequitable for the Court to compel his wife to live with him, it will refuse the relief.

Additionally, in a suit for restitution of conjugal rights by a Muslim husband against his wife, if the Court after a review of the evidence feels that the circumstances reveal that the husband had been guilty of unnecessary harassment caused to his wife or of such conduct as to make it inequitable for the Court to compel his wife to live with him, it will refuse the relief.

LawRato LawRato

874 votes

Restitution of conjugal rights means restoring the right of a spouse to live with the other. In every marriage it is implied that husband and wife both have legal right to cohabit and live together. If any spouse lives separately without any reasonable excuse and deprives the other from his (or her) company, the other spouse is deprived of his (her) legal conjugal right. Such other aggrieved spouse is then entitled to file a suit against the party who lives separately.


If the court finds that the spouse who is living separately without any reasonable justification, it shall pass order and compel him (her) to live together. Such a suit by the aggrieved party is called a suit for the restitution of conjugal rights.

The success or failure of a suit for restitution of conjugal rights depends on the fact whether the other spouses has any just cause for living separately or not. If a spouse lives separately due to some reasonable and just cause e.g. completing studies or due to transfer in service, the other spouse cannot compel him (her) to live together.

The court then refuses to pass order for restitution of conjugal rights. It is for the court to decide whether, under the circumstances, a spouse has reasonable excuse for living separately or not. It is found that in a married life it is generally the wife who, under some compulsion, has to leave this husband and live separately.

And, generally husband files a suit for restitution of conjugal rights. The wife defends her separation from husband. Under Muslim law, a wife can take following defenses against husband’s claim for restitution of conjugal rights:

(1) False charge of adultery against wife by her husband.

ADVERTISEMENTS:

(2) The wife had demanded her prompt dower which had not been paid provided no consummation has taken place.

(3) Repudiation of marriage by wife by exercising ‘option of puberty’.

(4) Renunciation of Islam by husband or husband’s using objectionable words against the Prophet.

(5) The husband has been declared out caste.

(6) Violation of a condition laid down in the marriage agreement, if any. However, such condition must be legal and must not be void.

(7) Physical or mental cruelty by husband.

It may be noted that the above-mentioned defences are only some of the instances of wife’s reasonable excuse for living separately. Under the Dissolution of Muslim Marriages Act, 1939, the scope of mental cruelty has now been widened.

Therefore, any ground which has been regarded as a ground for dissolution of marriage by wife under this Act or any such act of husband which may be regarded as ‘mental cruelty’ by husband may be a reasonable excuse for the wife to live separately.

Advocate Siddhant Sharma LawRato