Muslim Marriage – Restitution of conjugal rights

& Defences

Table of Contents
• Sources of Muslim law
o The Quran:
o Sunna an Hadis
o Ijma
o Qiyas
o Legislation
o Judicial decision
• There are three types of marriage
o Valid marriage
o Void marriage
o Fasid / irregular marriage
• Restitution of conjugal rights
• Defenses
o 1) Validity of marriage
o 2) False charge of adultery
o 3) Legal cruelty
o 4) Non- payment of prompt dower
o 5) Impotency of husband

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

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

1Validity 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
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=2ahUKEwjRgpSFl4PxAhXI7
nMBHahqDBUQFjABegQIGhAG&usg=AOvVaw1fzogCqWI8__J9R86wAeE_
Case laws
• Abdul Kadir V. Salima (1886),
https://www.google.com/url?sa=t&source=web&rct=j&url=https://indian
kanoon.org/doc/119342/&ved=2ahUKEwjz4Zv7l4PxAhUtgtgFHeYQDvgQ
FnoECAUQAQ&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.c
asemine.com/judgement/in/56b495dd607dba348f0158a3/amp&ved=2ahU
KEwjIvN6bmIPxAhVt_XMBHTX5D7AQFnoECAQQAQ&usg=AOvVaw1g72
tC8vfDyIGWnh-9iC5q&ampcf=1
• Moonshee Bazloor V. Mohammed Khan( 1867)MIA55
https://www.google.com/url?sa=t&source=web&rct=j&url=https://indiank
anoon.org/search/%3FformInput%3Dmoonshee%2520buzloor%2520ruhee
m%2520v%2520shumsoonnissa%2520begum&ved=2ahUKEwjDn7jLmIPx
AhW04nMBHQmnD7kQFnoECBEQAQ&usg=AOvVaw39RPamSKAaCPS3X
BUTkWb5
• Bakh Bivi V. Quain Din
https://www.google.com/url?sa=t&source=web&rct=j&url=http://www.th
e-
laws.com/Encyclopedia/Browse/Case%3FCaseId%3D724391466000&ved=
2ahUKEwjN8-
CGmYPxAhVD8HMBHYUKCvIQFnoECAQQAQ&usg=AOvVaw1ytWNgb
W1jRt361-YIL4n4
• Itwari v. Ashgari (AIR 1960AII 684)
https://www.google.com/url?sa=t&source=web&rct=j&url=https://indian
kanoon.org/doc/1456722/&ved=2ahUKEwiZ1IOcmYPxAhXjheYKHQqqA
KMQFnoECBEQAQ&usg=AOvVaw02oMh6h3oD2yKc1TwofKcf