Repudiation of marriage by the wife.

The wife is entitled to file a suit for the dissolution of her marriage on
the ground that she was given in marriage by her father or grandfather or
any other guardian, before she attained the age of fifteen that the
marriage had not been consummated, and that she had repudiated the
marriage before she attained the age of eighteen.
This is a ground which is available both in Hindu as well as Muslim law.

As a principle of law, power of the father to impose the status of

marriage on his minor children is unlimited and absolute in Muslim law.
But Muslim law-givers have provided some reins to this unbridled
paternal power.
This is provided in the minor's right of repudiation of marriage. A
person who has been married during his minority by the father, or a
guardian in marriage, has the right of repudiation of marriage on
attaining majority.
One difference saw in Hindu or Muslim law is that as far as repudiation
of marriage is concerned, the law is always same but there is one major
difference between the two. In case of Muslim law, the marriage has
been consummated then there is no repudiation is possible but in Hindu
law, the question of consummation is immaterial.

The proviso makes it very clear that marriage should not have been
consummated.
The main aspect in the Muslim law is the prevention of sexual morality.
Cruelty.—Under the old laws as well as under. the Dissolution of
Muslim Marriage Act, 1939, cruelty is a ground for divorce. Under the
Act, the wife is entitled to a decree of divorce if her husband treats her
with cruelty, that is to say:

a) habitually assaults her or makes her life miserable by cruelty of

conduct even if such conduct does not amount to physical ill-
treatment.
Siddique v. Amina 1996 Ker HC
it was established that husband had administered his wife with some
drug causing miscarriage. He also physically tortured her. It was a clear
case of cruelty. It is submitted that this definition will include all cases
to physical and mental cruelty of the modern matrimonial law.

(b) The husband associates with women of evil repute or leads an

infamous life. It appears that if the husband associates with a woman of
evil repute the clause will not apply, association should be with women
(more than one). This is something like living in adultery, and that, too,
not with ordinary women; it should be with prostitutes. "One or two
lapses from virtue" will not be enough.

C] The husband attempts to force her to lead an immoral life. In

countries where cruelty has been considered to be a ground for
matrimonial relief this has been considered to constitute cruelty.

D] The husband disposes of her property or prevents her from exercising

her legal rights over it.
In Zubaida v. Sarda Shaha
the Lahore High Court opined that the clause was not happily worded.
Abdul Rahman

observed: "It is not easy to say whether it 'was only meant to convey a
person who had been in the habit of selling his wife's property for his
own selfish ends or also converts the single act of a person who sells or
assigns his wife's property of any value, however insignificant, and not
for his own advantage, but, say, for the purpose of procuring medicine
for his ailing wife when he did not have the means to buy it himself out
of his own money. Nor am I sure that the legislature was not intending to
provide for cases where a person gets rid of the whole or substantial
portion of his wife's belongings but also for cases where a husband
happens to dispose of a ring say of Rs. 3 in value. I should interpret the
word property in the sense of a substantial portion of wife's property and
its disposal in the sense of getting rid of the property not for wife's
benefit but for the selfish ends of the husband.

(e) The husband obstructs her in the observance of her religious

profession or practice. It is submitted that the clause will apply even
when the wife is a non-Muslim.

(f) The husband who has more wives than one, does not treat her
(plaintiff) equitably in accordance with the injunctions of the Quran.

Mohd. Adul v. Moreena Begum 1949 Guw HC

A wife filed divorce petition on the ground of cruelty and non-
performance of marital relations by the husband. Later the couple filed
for mutual divorce and then it was allowed even there was no such
provision made in the act.

In Itwari v. Asghari,
one A took a second wife, as a consequence of which his first wife
refused to live with him. On A's petition for restitution of conjugal
rights, the court held that the very act of taking a second wife constitutes
cruelty since Muslim law enforced in India considers "polygamy as an
institution to be tolerated but not encouraged". The court further added
that today the onus is on the husband to prove that his taking of second
wife has not caused an insult or cruelty to his first wife, and in the
absence of cogent explanation "the court will presume, under the
modern conditions, that the action, of the husband in taking a second
wife involved cruelty to the first".
If the husband accuses his wife of unchastity, adultery or immorality, it
amounts to cruelty.

Apostasy.—Renunciation of Islam or conversion of a Muslim to some

other religion, is called apostasy from Islam. Apostasy may be express
or implied. When a Muslim says, "I renounce Islam", or "I do not
believe in God and the Prophet Muhammad", the apostasy is express,
when a Muslim uses grossly disrespectful language towards the prophet
or the Koran the apostasy is implied. Formal conversion to another
religion also amounts to apostasy. Amere declaration, such as "I
renounce Islam" is enough, no formal conversion is necessary.
Muslim law considered apostasy as a treasonable offence. A male
apostate was liable to death sentence and a female apostate to life
imprisonment.
Under the Muslim law in modem India, the rule came to be established
that apostasy of either husband or wife operated as a complete and
immediate dissolution (or instant dissolution, as Ameer Ali puts it).
Now, after the. coming into force of the Dissolution of Muslim
Marriage Act, 1939, the position is as follows:
(i) The apostasy of the husband still results in an instant dissolution of
marriage, thus, where on the apostasy of the husband, the wife married
another man, even before the expiration of idda, it was held that she was
not guilty of bigamy."
(ii) If a Muslim wife who belonged to another faith before her marriage,
reconverts to her original faith, or to some other faith, then also, it
results in the instant dissolution of marriage.
(iii) The apostasy of a Muslim wife does not result in the dissolution of
marriage, instant or otherwise.
Apostasy of the wife does not bar her right to sue for divorce on any
ground specified in Section 2, Dissolution of Muslim Marriage Act,
1939.
MW> HW= no Dissolution
HW>MW>HW= Dissolution
Hindu>MUSLIM>Christian= no dissolution.
Apostasy ispo facto does not dissolve the marriage of Muslim women
unless she reconverts to her original religion.

Effect of conversion to another faith:

This renunciation of Islam by a married Muslim woman or her
conversion to faith other than Islam shall not by itself operate to dissolve
her marriage.

Provided that after such renunciation or conversion, the woman shall be

entitled to obtain a decree for the dissolution of her marriage on any of
the grounds mentioned in sec 2.
That means even if a Muslim woman converts some other religion, it is
possible that her marriage is not dissolved but she no longer a Muslim.
Now if she is not a Muslim then also, she is entitled to benefits given
under section 2.

Provide further that the provisions of this section shall not apply to a
woman converted to Islam from some other faith who re-embraces her
former faith.
Restitution of Conjugal Rights
The matrimonial remedy of restitution of conjugal rights was made
available to all the communities, including the Muslims, at an early
period of British rule in India.
The earliest Privy Council decision under Muslim law in the case of .
Moonshee Buzul-ul-Raheem v. Shumsoonissa, (1876)

Held that:
The remedy is available to all persons.
In modem India by a suit of restitution of conjugal rights in the lowest
civil court.
Whether this right is available to Husband only?
This question has been raised because most of the cases the suits for
restitution of conjugal rights have been filed by the husband.
There seems to be another reason also: the husband can frustrate the
wife's petition for restitution of conjugal rights at any time by
pronouncing divorce on her. The remedy is available to both the parties.
The marital party left without any reasonable cause becomes basis for
the restitution of conjugal rights.

Shakila v. Gulam 1971 Bom HC

It was held that the restitution of conjugal rights is a barbarous remedy.
Our constitution guarantees personal liberty. In fact, it is abolished by
most of the country including England. Bom HC held that it is not only
barbaric but amounts to slavery or quasi slavery.

Constitutionality of Restitution of Conjugal Rights

The issue of the constitutional validity of Section 9 was first raised in T Sareeta
v Venkatasubbiah, 1963 AP HC

in which the Andhra Pradesh High Court held Section 9 of the Hindu Marriage
Act to be violative of the Constitution and the impugned section was
unconstitutional.
Justice Chaudhary held Section 9 to be “savage and barbarous remedy violating
the right to privacy and human dignity guaranteed by Article 21 of the
Constitution, hence void.

The dictum of Justice Chaudhary did not find favor with the Delhi High Court
when it was questioned in Harvinder Kaur v Harminder Singh.

Justice Rohtagi observed “Justice Chaudhary in the case of T. Sareetha has

over-relied on sex is the basic fallacy in his opinion.

As per J. Rohtagi, J. Chaudhary only seems to suggest that restitution of

conjugal rights order has only a maiden purpose, that is, to force the disinclined
wife to enter into sexual intercourse with her husband.”

The matter then finally came before the Supreme Court in Saroj Rani v
Sudarshan Kumar Chadha

where the Supreme Court overruled T Sareeta

relying on the judgment of Justice Rotagi in Harvinder Kaur.

Justice Sabyasachi Mukerji observed that “it cannot be viewed in the manner
the learned single Judge bench of the Andhra Pradesh High Court has viewed it
and we are unable to hold that S.9 to be violative of Article 14 and Article 21 of
the Constitution.”

The judgment was held in favor of Section 9 of the Hindu Marriage Act of 1955,
in the legal sphere as declared by the apex court and, most of all, the principle
of restitution of conjugal rights stands constitutional in the Indian legal system.

With regard to the violation of Article 14 of the Constitution, the Court ruled
that there is complete equality of both genders and equal safeguard of the laws
so far as the relief is concerned, thus, Section 9 could not be held to be in
violation of Article 14 of the Constitution because by the amending Act 44 of
1964 “either party to a marriage” is allowed to present a petition on the ground
given in Section 13 (I-A).
With regard to the violation of Article 21 of the Constitution, the Court observed
that the only purpose of the remedy is ‘cohabitation’ and it is not enforcing
sexual intercourse between the unwilling spouse.

The court denounced the introduction of Constitutional Law into family law since
it will prove a ruthless destructor of the institution of marriage.

The aim of the Restitution Decree was only to encourage a united marriage and
to prevent an unwilling woman from engaging in sexual intercourse with the
husband. The only objective was to achieve ‘cohabitation’ between spouses, and
therefore, ‘consortium’ was only concentrated.

A. Analysis: Why should it be abolished?

1. Deception by the Petitioner:

Reconciliation between the husband and wife to save their marriage is the
primary reason for the restitution of conjugal rights. However, when filing for
the same, individuals often have other ulterior motives. In addition, section 13
(1-A) of the Hindu Marriage Act, 1955 states that it can be used as a ground for
divorce if it is not complied with. This defeats Section 9’s own purpose as its
purpose is to prevent divorce.

2. Difficulties in the enforcement of the decree:

If an individual fails to comply, the Court may implement the decree.

Under Rule 32(1), the Court may attach the decree holder’s property by selling
their property within 6 months. However, when the wife does not own property,
which is very prevalent in India, this becomes an issue. Then there is a method
to determine her share of the estate of her husband.

3. Interference by the Court:

Marriage is a bond of emotions. The withdrawing spouse’s will is not taken into
account. If all this is accomplished by force, how will any love and affection be
brought about that a marriage should have?
Restitution of Conjugal Rights is based on a noble cause but has lost its
importance with the evolving times and social scenarios and does not produce
the required impact.

It is important to note, however, that while England, the country from whom we
borrowed the concept has abolished this remedy but whether we should be
going on the same lines is open to further debate and analysis.

The defences that have been valid against a suit for restitution of
conjugal rights may be summarized.
They are:
1] Cruelty of the defendant. It seems that not merely physical cruelty but
legal cruelty in its wider connotation, including all the instances of
cruelty stated in clause (vii) of-S. 2, Dissolution of Muslim Marriage
Act, 1939, is included under the definition of cruelty.

Shahinda Praveen v. Md. Shakul, 1987 Del

2] Institution of criminal cases against the wife and her relatives and
their vigorous pursuit by the husband amounts to cruelty and husband is
not entitled to a decree for restitution of conjugal right.

3] Any matrimonial misconduct of the husband though not amounting to

a ground for a matrimonial relief, may also constitute a valid defence.

4] If the husband keeps a concubine in the same house in which his wife
lives, resulting in quarrels between the two, it amounts to cruelty.
Merely keeping is not cruelty per se unless there are some acts of cruelty
been done to the wife.
5] If the husband accuses his wife of unchastity, adultery or immorality,
it amounts to cruelty.

6] Anis Begum v. Muhammad Shafa Wali, 1933 All 634.

the court held that the very act of taking a second wife constitutes
cruelty since Muslim law enforced in India considers "polygamy as an
institution to be tolerated but not encouraged". The court further added
that today the onus is on the husband to prove that his taking of second
wife has not caused an insult or cruelty to his first wife, and in the
absence of cogent explanation "the court will presume, under the
modern conditions, that the action, of the husband in taking a second
wife involved cruelty to the first".

When the marriage is void, irregular, or has been avoided, in the

exercise of the option of puberty, or when the marriage has been validly
repudiated, the suit for restitution of conjugal rights will fail.
Similarly, where sexual intercourse becomes improper, such as after lian
or zihar, restitution of conjugal rights cannot be granted.

If the plaintiff is guilty of apostasy, the suit for restitution will not
succeed.

Where the wife is living separate from the husband on account of non-
payment of prompt dower, restitution of conjugal rights cannot be
granted.
 • A valid separation agreement is a good defence to a suit for
restitution of conjugal rights.
• When the suit for restitution of conjugal rights is not bona fide, and
is filed to serve some ulterior motive, such as taking possession of
wife's property, the restitution of conjugal rights cannot be
decreed.
It may be taken to be well established proposition that declaratory suits
can be filed in respect of a right or status arising out of Muslim
marriage. Such suits can be filed under S. 34, Specific Relief Act, 1963.
A declaratory suit may be filed in respect of the following:
(i) that the marriage of the plaintiff with the defendant is null and
void.
(ii) that the defendant who is claiming himself or herself to be the
husband or wife of the plaintiff, is, in fact, not his or her
husband or wife. (This is known as jactitation);
(iii) that the plaintiff is lawfully wedded husband or wife of the
defendant;
(iv) that the plaintiff in the exercise of his right of repudiation of
marriage, or in the exercise of the option of puberty, has
repudiated the marriage with the defendant;
(v) that the plaintiff has terminated his or her irregular marriage
with the defendant; or
(vi) that the plaintiff's marriage with the defendant has been validly
dissolved.

Suit for breach of promise to marry.—

Under Muslim law, unless the contract of marriage is completed, no
rights and obligations arise thereunder and, therefore, unlike Hindu law
or English law, no suit for damages for the breach of promise lies.
However, a suit for the return of ornaments, clothes, cash, etc. lies in
case a sagai or mangni (engagement, or khitba as it is known in Arabic)
is broken.
A Muslim husband can claim damages against a person who prevents or
persuades his wife to live away from him.
An action for enticement of the wife also lies.

Legal effects of divorce

• Mutual rights of inheritances cease.
• Cohabitation becomes illegal, and children born after such intercourse
will be illegitimate.
• Dower becomes immediately payable.
• Parties can contract another marriage.
• Wife is entitled to maintenance during the iddat period.

In Rashid Ahmad v. Anisa Khatun,

The husband had repudiated the marriage in talak-ul-bidaa form;
subsequently re-married and then begot a child. It was held that new
marriage was invalid and child was illegitimate.