JAI NARAIN VYAS UNIVERSITY, JODHPUR

FACULTY OF LAW

BA.L.L. B 7TH SEMESTER

SESSION: - 2022-2023

MUSLIM LAW
MOOY COURT MEMORIAL

SUBMITTED TO: SUBMITTED BY:

DR PRIYANKA GOSWAMI AKSHA BELIM
20BAL20064
BEFORE THE PRINCIPAL JUDGE, FAMILY COURT
JODHPUR

MATRIMONIAL CASE NO. 1001 OF 2022

In the Matter of:

‘B’ ................................................................. PETITIONER

Versus

‘A’ ................................................................ RESPONDENT

MEMORIAL ON THE BEHALF OF PETITIONER

 TABLE OF CONTENTS

 INDEX OF AUTHORITIES

 STATEMENT OF JURISDICTION

 STATEMENT OF FACTS

 STATEMENT OF ISSUE

 ARGUMENTS ADVANCED

 PRAYER
 INDEX OF AUTHORITIES

CASES
 Abdul Kadir v. Salima (1886) ALL 149
 Nasra Begum v. Rizwan Ali (1980) ALL 118
 Rabia Khatoon v. Mukhtar Ahmed (1996) ALL 548
 Moonshee Buzloor Ruheem v. Shumsoonissa Begum (1867) 1 MIA 551

SOURCES

 www.legalserviceindia.com
 www.legalbites.in
 STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THE FAMILY COURT UNDER SECTION 7

OFTHE FAMILY COURT ACTS, 1984 AS READ WITH SECTION 281 OF MUSLIM
LAW WHICH READS AS HEREUNDER-
7. JURISDICTION
(1) Subject to the other provisions of this Act, a Family Court shall-

(1) Subject to the other provisions of this Act, a Family Court shall-"
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate
civil court under any law for the time being in force in respect of suits and proceedings of
the nature referred to in the explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district
court or, as the case may be, such subordinate civil court for the area to which the jurisdiction
of the Family Court extends.

Explanation. -The suits and proceedings referred to in this sub-section are suits and
proceedingsof the following nature, namely: -
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage
(declaring the marriage to be null and void or, as the case may be, annulling the marriage)
or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the
matrimonialstatus of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the
parties or of either of them;
………………….
(2)
………………….
Section 281 of the Muslim Law, provides that the husband may sue the wife for restitution
ofconjugal rights, when the wife without lawful cause ceases to cohabit with her husband.
 STATEMENT OF FACTS

A Muslim woman was married to a Muslim male (B). The marriage was consummated. The
wife deserted the husband and left for her paternal home after three months of her
marriage. The payment of Muajjal Mahr was not made. The husband repeatedly requested
the wife to return to the husband. But she did not return. The husband brought the suit for
Restitution of Conjugal Rights and during the course of litigation, the husband made the
payment of Mahr to the wife. However, the wife (A) refused to cohabit with the husband.

STATEMENT OF ISSUE

WHETHER THE PETITION OF RESTITUTION OF CONJUGAL RIGHTS

FILED BY THE HUSBAND MAINTAINABLE?

ARGUMENTS ADVANCED

 It is respectfully submitted that in the instant case, there is a matrimonial dispute

arisingout of a petition filed by the Petitioner ‘B’ for a decree of restitution of
conjugal rightsbetween himself and the Respondent ‘A’.
 It is submitted that a marriage under Muslim Law is essentially a contract and a suit
forrestitution of conjugal rights would be a suit for specific performance of the terms
of the marriage contract. When either the husband or the wife has, without any lawful
cause, withdrawn himself or herself from the society of other, the aggrieved party
maybring a suit for restitution of conjugal rights.
As in the present case, the respondent ‘A’ without any just, reasonable and lawful
ground withdrawn from the society of her husband ‘B’. As their marriage was happy
and cordial and even consummated with the free consent of the wife.
 Prompt Dower becomes payable immediately during or after the marriage ceremony
and it must be paid on demand, unless the other parties have agreed for the delay. If
 the dower is not paid then wife can refuse to live with her husband until the amount
is paid.
 If the marriage has been consummated that does not convert the prompt dower into
deferred dower. After consummation, wife cannot refuse to live with her husband on
the ground of non-payment of dower, but she can sue her husband for the payment
of dower. And if the wife refuses to live with her husband after consummation due
to non-payment of dower, then Court can pass the decree of restitution of conjugal
Rights on the condition of payment of dower by husband.
 Husband can only file petition for the restitution of conjugal Rights if the amount of
dower is not paid when the marriage has been consummated.
 It is argued that if consummation of marriage has taken place, then the suit for
restitution cannot be dismissed on the ground of non-payment of dower. Abu Yusuf
and Imam' Muhammed said, regarding the surrender of the wife to her husband as
bearing an analogy to delivery of goods in sale, held the view that the lien of the
wife for her dower as a plea for resisting cohabitation ceased to exist on
consummation.
 In Moonshee Buzloor Ruheem v. Shumsoonissa Begum (1867), it was said that
where a wife without lawful cause, ceases to cohabit with her husband, the husband
may sue the wife for restitution of conjugal rights.
 In the case Abdul Kadir v. Salima (1886), it was held that wife can refuse to cohabit
or to live with her husband and if before the consummation of marriage husband
files petition for restitution of conjugal rights, then such appeal will be dismissed.
 In the case of Nasra Begum v. Rizwan Ali (1980), it was held by the Allahabad
High Court the wife can refuse to cohabit or to live with her husband until the amount
of dower is paid by him. Any suit for restitution of conjugal rights will be void before
the consummation of marriage. In case the wife is minor or lunatic then her guardian
can refuse to send her to her matrimonial home until the amount of dower is paid by
her husband and if the minor wife is already in the custody of husband, then her
guardians can take her back on the ground that the amount of dower is not paid.
 Prompt Dower should be paid on demand, the limitation period of filing the suit for
non-payment of dower is three years. The time would begin from the date when the
demand was made and was refused by the husband during the subsistence of
marriage. If the wife does not make any demand, then the limitation period will
begin from the date of dissolution of marriage either by death or divorce.
 Under Muslim law, wife has a right to refuse to live with her husband when the
amount of prompt dower is not paid, if the marriage has not been consummated. If
the wife is minor or a lunatic then her guardians can refuse to send her to her
matrimonial home until the payment of prompt dower is done and during that time
husband is bound to maintain his wife.
 In the case Rabia Khatoon v. Mukhtar Ahmed (1996), it was held that if the suit
for restitution of conjugal rights is brought up after the consummation of marriage
with the free consent of wife, then the decree will be passed on the condition of
payment of prompt dower.
 If the suit is brought after the consummation of the marriage then a decree for
restitution of conjugal rights on payment of prompt dower is to be passed.
 It is contended that even ‘B’ has paid the Mahr during the suit of restitution of
conjugalrights. If the petition for restitution of conjugal rights is brought after sexual
intercoursehas taken place with her full consent, the proper decree to pass is not a
decree of dismissal but a decree of restitution conditional on the payment of dower.9
 It is humbly submitted that this defence will not overthrow the petition for restitution
but a decree conditional on this payment may be passed, if the marriage has been
consummated.
 Hence, it is concluded that the respondent ‘A’ without any lawful and just cause has
withdrawn from the society of her husband and the payment of Mahr has also being
made during the course of litigation and most importantly, the marriage was
consummated. Now, she cannot refuse on cohabitation with her husband ‘B’.
 PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUE RAISED, ARGUMENT ADVANCED,

REASONS GIVEN ANDAUTHORITIES CITED, THIS HON’BLE COURT MAY BE

PLEASED TO:

A) GRANT THE DECREE FOR RESTITUTION OF CONJUGAL RIGHTS IN

THE FAVOUR OFPETITIONER AND AGAINST THE RESPONDENT;

B) AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE

PLEASED TO GRANT IN THEINTERESTS OF JUSTICE, EQUITY AND
GOOD CONSCIENCE.

COUNSEL FOR PETITIONER