Restitution of Conjugal Rights by Maha Ali

Marriage confers important rights and entails corresponding obligations both on the husband and the wife. Some of these rights are capable of being altered by the agreement freely entered into by the parties. But mainly, the obligations arising out of marriage are laid down by the law. An important obligation is consortium which not only means living together, but also implies a ‘union of fortunes’. A fundamental principle of matrimonial law is that one spouse is entitled to the society and comfort of the other. Thus, where wife without lawful cause, refuses to live with her husband, the husband is entitled to sue for the restitution of conjugal rights and similarly, the wife has the right to demand the fulfillment by the husband of his marital duties. The restitution of conjugal rights is often regarded as a matrimonial remedy, but at the same time, it has faced a lot of criticisms. In majority of the cases in the sub-continent, the question which arises is regarding its origin, its roots in religion and the it constitutionality.

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Marriage is considered more of a religious, than a social or legal contract, in most communities. For example, DF Mulla in his ‘Mohammedan Law’ explains that the object of marriage is procreation and legalization of children. Similarly, it is considered a ‘samskar’ or sacrament instead of a social-legal contract in the Hindu society. It was established in Gurdev Kaur v. Swaran Singh[1], that the action for restitution was borrowed from old Ecclesiastical courts in England, and was, in fact, originally not Hindu.[2] The concept of restitution of conjugal rights was transferred from the ecclesiastical courts to the Divorce Court by the Divorce Act of 1857. If one spouse left home, the other could ask the court for a writ for the restitution of conjugal rights. In a case where no excuse for their absence was presented, the court would order the spouse to return home. The penalty for non-compliance would be “attachment”, which meant that the guilty party would be imprisoned until they agreed to obey the court order.  Christian marriages treated the woman as part of the man. Canon law considered a man and his wife as one person, which meant that the case could only be dealt with by Ecclesiastical courts and not by civil courts. However, no such principle exists in Islamic or Hindu laws.[3] Under the ancient Hindu law, the most important duty of the wife was to honor and serve the husband, and it was the duty of the husband to provide residence and maintenance for his wife. The remedy of restitution was not mentioned in the Shastric texts. However, if one of them failed to perform their marital duties, the other spouse was entitled to enforce his or her rights in a court of law.[4] The English Ecclesiastical law of the restitution of conjugal rights was grafted into the existing Indian Penal Code in the nineteenth century with little modification, it subsequently became completely controlled and shaped by Indian interpretations of marital rights and obligations.[5]

The significant feature of the restitution of conjugal rights is that it is a remedy aimed at preserving the marriage and not dissolving it. However, as observed in R. v. Jackson[6], a woman named Mrs. Jackson was confined by her husband, and hence the award was impotent and not a useful one. Lord Herchell described it in his judgment as ‘barbarous’.[7] Earlier marriages were formed on the fundamental principle that the wife was considered a property of her husband, which is why she was required to live with him willingly or unwillingly, in the home provided by her husband. In the case that the woman refused to comply or left her husband, she could be compelled to live with him. M. A. Qureshi in his book, 'Marriage and Matrimonial Remedies' explains this phenomenon by comparing the women in those marriages with cattle which could be brought back to their masters in the case that they ran away.

With the Hindu Marriage Act of 1955, this idea of the wife being unconditionally tied to the husband was completely altered.  According to Section 9 of the Act, both parties can avail restitution of conjugal rights. In Baburao v. Sushila[8], the Madhya Pradesh High Court stated that only when the petitioner deserves it should the restitution be allowed. However, it cannot be granted if there is no hope for the parties to cohabit happily. It further states that, “in marital matters it is the attitude of the mind and the feelings that count, and no decree of the court can force the parties to live together.” [9]

Despite the fact that all of the religions in India made references to marital duties and cohabitation, lawyers and judges continually pointed out during this period that importing the concept of restitution of conjugal rights was entirely inappropriate as it did not formally constitute part of any of the major religions in India. The most common practice, in cases of severe disagreements between couples, was that the wife would flee to her natal family. [10] In the mid-nineteenth century, the Restitution of Conjugal Rights (Act XV of 1877, Schedule 11, Article 34) was available to the husband claiming the society of his wife. Formerly, women could seek help of the extended family in cases of violence against them by the husbands, but Section 259 of the Civil Procedure Code (1882) stated that the extended family could not interfere, particularly if the person ‘harboring’ her was a distant relative- such as an uncle instead of a parent. [11]

Arguments were presented for and against the doctrine of the restitution of conjugal rights during the legislative debates on the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955. In Shakila Banu v. Gulam Mustafa[12], the High Court observed:

“The concept of restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”  

 Later, in T.Sareetha v. T. Venkata Subbaiah[13] , the Andhra Pradesh High Court held the section 9 of the Hindu Marriage Act to be violative of the Constitution. The court indicated that ''the consequences of such a decree are firstly to transfer the choice to have marital intercourse to the state from the concerned individual and secondly to surrender the choice of the individual to allow or not to allow one's body to be used as "a vehicle for another human being's". Court also stated that the section assailed on the touchstone of “minimum rationality... it promotes no legitimate public purpose based on any conception of the general good and hence, is arbitrary and void.”

In Islamic law, according to A.A.A. Fyzee in ‘Outlines of Muslim Law’[14], the Holy Qur'an gives the husbands the right to retain their wives with kindness or part with them with an equal consideration. However, if the husband has not paid the dower money, he cannot ask for the restitution of conjugal rights under Islamic law. It is further discussed in the Hedaya[15] that until the wife receives her dower from the husband, she may refuse her husband to a carnal connection. Ameer Ali in the 'Mohammedan Law' has referred to the Hedaya again, which provides that the husband has no power to stop his wife from traveling or leaving his house to visit her friends until he has paid the whole amount of dower, because he does not have the right to “secure fulfillment before rendering fulfillment himself.” This rule was used in Eidan v. Mazhar Hossain [16] where the Allahabad High Court stated that the wife could refuse to cohabit with her husband until he had paid the dower, in a suit by the husband to enforce his conjugal rights. Other such reasons due to which the court can refuse to grant order of the restitution of conjugal rights may be cruelty of husband or in-laws towards the wife, failure of husband to perform marital obligations, and second marriage of the husband. The Qur'an commands the husbands to keep their wives with kindness, or to part with them with an equal consideration.[17] The husband can divorce a wife who is unwilling to live with him, or marry another woman, leaving his first wife in peace.[18]

Owing to the Muslim husband being dominant in matrimonial matters, the Court leans in favour of the wife generally, and requires strict proof of all allegations necessary for matrimonial relief. The obligation of the wife to live with her husband is not absolute. The law recognizes circumstances which justify her refusal to live with him. For instance, if he has deserted her for a long time, or if he has directed her to leave his house, he cannot ask the assistance of the Court to compel her to live with him.[19] Irregularity of marriage is also a valid defense to a suit for the restitution of conjugal rights, as it is necessary for a marriage to be valid according to Muslim law before the Courts can grant a decree of restitution of conjugal rights. [20] In another judgment, it was discussed that Islam does not force the spouses a life devoid of harmony and happiness and the parties cannot live together as they should, it permits a separation.[21]

As understood, the restitution of conjugal rights is a part of the personal laws of the individual, thus they are guided by ideals such as religion, tradition, and custom. A very important feature of restitution of conjugal rights to be emphasized is that it is a remedy aimed at preserving the marriage and not at disrupting it, as in the case of divorce or judicial separation. So the restitution of conjugal rights remedy tries in promoting reconciliation between the parties and maintenance of matrimonial. It tries to protect the society from denigrating. But the final decision is that of the parties whether to obey the decree of restitution of conjugal rights and to continue with the matrimony or not.

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[1] Gurdev Kaur v. Swaran Singh, A.I.R. 1959, Punj. 164.

[2] M.A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 80

[3] M.L. Shanley, Feminism, Marriage and the Law in Victorian England, p. 177

[4] A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 82

[5] S. Sarkar & T. Sarkar, Women and Social Reform in Modern India, p. 289

[6] R. v. Jackson (1891) 1 Q. B. 671.

[7] A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 79

[8] Baburao v. Sushila A.I.R. 1960, M.P., 73

[9] As cited in A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 84

[10] S. Sarkar & T. Sarkar, Women and Social Reform in Modern India, p. 287

[11] S. Sarkar & T. Sarkar, Women and Social Reform in Modern India, p. 288

[12] AIR 1971 Bom. 166, ILR 1971 Bom. 714

[13] AIR 1983 AP 356

[14] Pg. 116

[15] C. Hamilton, The Hedaya or Guide, pg. 54

[16] Eidan v. Mazhar Hossain 1877 I.L.L. All., 483

[17] Surah 65, verse 3

[18] (1934) 59 Bom. 426

[19] Ameer Ali, Mohammedan Law. 6^th Ed. Pg. 383

[20] PLD 1959 Lah. 1014

[21] PLD 1959 Lah. 566

Authentic Discourse on Reform in Pakistan

It goes without saying that the judicial system of Pakistan is extremely deficient and is in dire need of fundamental and immediate reforms. However, so far, there is not a single comprehensive study which systematically analyses the root causes of the problems faced by the system of the administration of justice in Pakistan. This is despite the fact that many foreign funded projects were undertaken and a plethora of research work was produced to reform the Pakistani judicial system in the recent past.

Given the complexity and severity of the challenges faced by the legal and judicial apparatus in Pakistan, any piecemeal approach is predestined to fail. In this context, Dr. Osama Siddique’s study is both timely and to the point. The study employs a wide range of methodological techniques such as historical, empirical and sociological to analyse the judicial reform discourse in Pakistan. It also makes comparative references to the legal reform discourse in India.

The book is built around four inter-related themes: colonial context of the Pakistani legal system; problems faced by litigants in civil courts; crime perception; and critique of foreign funded legal reforms. It is divided into six substantial chapters and a final chapter titled ‘Toward a new approach’, which provides a conclusion along with recommendations. Each of the substantial chapters is packed with dense information based on qualitative research and quantitative data to the extent that each chapter is equivalent to a doctoral thesis in its own right.

The first chapter emphasises the need to link the judicial reform discourse in Pakistan with its colonial past because, according to the author, “in many significant ways, Pakistan’s colonial past and its post-colonial present are contiguous eras that seamlessly flow into each other in the historical continuum…” (p5). He then classifies the existing literature regarding “narratives of colonial displacement” of local legal traditions into three broad categories: desirable modernisation, inevitable modernisation, and radical displacement.

He highlights the complex and often contradictory process of colonialism by arguing “while violence and coercion may have at times played a role in pursuit of certain policy objectives, so did compromise, cooperation and acceptance.” (p57). This chapter provides the most comprehensive overview of colonial legal history.

Chapters 2 and 3 are based on empirical data collected from various parts of the Punjab between 2009 and 2011. At the outset the author observes the poor quality of judicial and legal statistics maintained by the state officials. He then goes on to fill this gap by conducting an extensive survey regarding civil and criminal litigation by looking into the background of litigants, lawyers and judges, the cost of litigation, causes of disputes and delays in adjudication, alternative modes of dispute resolution, perception of the prevalence of crime, nature of various crimes, and crime reporting.

The depth of insights and the incisive nature of the questions raised in these two surveys are admirable. For instance, the author goes on to ask follow-up questions regarding the nature of litigation and whether the respondents would choose litigation if confronted with future disputes and thus come back to the courts to seek remedies. Surprisingly, 48 per cent respondents said that they would come back to the court in case they have a dispute in future. However, when they were interviewed further, out of this number, 77 per cent said that they did not have any other option.

Regarding the criminal litigation survey, the author observes that there is a causal relationship between the failure of the system of administration of justice and violence in society, as in many cases, failure to resolve a civil case led to criminal litigation. It also forced litigants to search for alternative mechanisms for dispute resolutions which included not only a recourse to extended family, panchayat and influential landlords, but also local crime lords and even local police and bureaucracy. (p165)

Chapters 4 through 6 provide a critique of various judicial reform projects in Pakistan including the Asian Development Bank’s $ 350 million Access to Justice Programme — the largest externally funded judicial reform programme in the world todate.

It is observed that the reform discourse is ahistorical and decontextualised as it fails to take into account history, social realities, culture, political and economic realities and popular aspirations. This myopic approach is due to the monopoly of the ‘legal community’ who forms the ‘reform club’ in Pakistan, which includes judges, lawyers, policy-makers, and consultants. They focus primarily on formal law and legal institutions, and totally ignore the wider socio-economic, cultural and political environment in which the judicial institutions operate. This also exposes the weakness of the democratic system in Pakistan because politicians and legislators play a minimal role in the judicial reform discourse. As a logical consequence of this arrangement, the whole project of judicial-cum-legal reforms become bureaucratic and unaccountable. This also results in ignoring the alternative modes of dispute resolution, which could not only be efficient and cheaper, but also reduce the case-load of the judiciary.

Dr Siddique recommends a broader multidisciplinary approach which is able to “shift the focus of justice sector reform from a purely technocratic/legalistic perspective to a legal-sociological viewpoint”. (p434) This is because the causes of many problems faced by the ordinary litigants in society “lie far beyond the adjudicative and corrective capacity of the courts”. This requires “a deeper understanding of what causes societal dispute and resulting litigation”. The book concludes with the prescription, “… the ‘cultural hegemony of law’ will have to give way to a larger, more democratic, and richer consultation…”  (p436-7)

This is a path-breaking study both in terms of its content and methodology. The author has made full use of his academic and professional background to boldly engage with the intricacies of justice sector reforms in Pakistan. His empirical analysis is informed through insights drawn from such diverse theoretical frameworks as law and development, comparative law, legal anthropology, sociology of law, Indian legal history, legal theory and legal realism.

The next line of our national inquiry should focus on the issue of the political economy of judicial reforms in Pakistan, which will expose the impediments at local, national and international levels, and our future research should further specifically explore the process of the culmination of academic research into policy-making. This book has succeeded in providing the groundwork for such further research.

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