Restituion of conjugal rights under mohammedan law
Querist :
Anonymous
(Querist) 18 January 2018
This query is : Resolved
Before which court of law, a Muslim husband can file restitution of conjugal rights and under which provision of law the said court will have jurusdiction to entertain the restitution of conjugal rights suit????
Vijay Raj Mahajan
(Expert) 18 January 2018
There is no provision under the Hanafi or any other Mohammedan Law for Restitution of Conjugal Rights. Some over intelligent advocates misguide their Muslim clients for filling the petition for RCR but the question raised about under which provision of Muslim Law the RCR petition is being filled they have no reply. I have seen one stupid Advocate in Tis Hazaari, Delhi Family Court telling the Principal Judge of that it comes under section 9 of Hindu Marriage Act,1955 for his Muslim Male Client.
Sudhir Kumar, Advocate
(Expert) 18 January 2018
does not matter to which community or personal law you belong.
RCR notice is a time tested tool to compel wife to raise true/false complaint of dowry/domestic violence against husband with family including married/unmarried brother/sisters wit/without their spouse. This way husband leaves her with no choice but to spoil his family even if she does not want to do so.
Thus forum is full of such cases where husband with parents/siblings faced such criminal charges.
After visiting jails people realise that the situation inside Indian Jails is not as rosy as shown in movies and the cops are also comedians in movies which is not in actual life.
N.K.Assumi
(Expert) 19 January 2018
With deep respect to the above expert opinion, I am of the view that even Indian Muslim can file suit for RCR before the Family Court..
R.Ramachandran
(Expert) 19 January 2018
Dear Mr. Assumi, the precise question is under which legal provision a Muslim can apply for RCR.
Vijay Raj Mahajan
(Expert) 19 January 2018
Exactly under which Muslim Law the petition for Restitution of Conjugal Rights can be filed ?
As far filling Petition in the Family Court by Muslim are concerned that is not possible for the Muslim men or husbands and only Muslim women can file any Petition either for any matrimonial relief like, Dissolution of Marriage under the Dissolution of Muslim Marriage Act,1939 or the maintenance petition under section 125 Cr.P.C. Muslim women can also file petition under the Guardians & Wards Act, 1890.
The Muslim man can file petition for seeking sole guardianship or custody under the Guardians & Wards Act . The Muslim man/husband can file application under section 127 Cr.P.C for alternation of maintenance order already made under section 125 Cr.P.C.
N.K.Assumi
(Expert) 19 January 2018
Am I to take the view that family Court is non secular? Yes, Muslim personal law is govern by their Quran, sunna, ijma and precedents etc, but surprisingly even in Pakistan they have Family Courts Act of 1964, with Amendment Act of 2015, which also provides for Restitution of Conjugal Rights under section 5 of the Act. Now coming to our Family Courts Act of 1984, the preamble to the act reflects secular aspects of the act, in other words any Indian citizen can claim relief as provided for by the Act, just like CrPc.
Even before the establishment of our Family Court Act of 1984, Indian Muslims were filing suit for Restitution of Conjugal Rights in Indian courts, and there is no any earthly reasons why Indian Muslim cannot ask for RCR under FMA, also there is no conflicts of law between FCA and Muslim personnel law as far as RCR is concern.
Sources of law of Marriage and divorce:
India is a secular country and a wide number of religions are freely practised. The major religions practised include Hinduism, Islam and Christianity. People solemnise marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws. Therefore, the matrimonial laws in India, including laws on marriage, divorce and other connected issues, are essentially governed by the personal laws of the parties depending on their religion and also statutory laws like the FCA, CrPc and DVA or the SMA etc?. Are we to interpret that those laws are not applicable to Muslim?
Jurisdiction:
What are the main requirements for Indian courts to have jurisdiction in relation to divorce, property and children proceedings? All Indian matrimonial statutes contain jurisdictional rules. Two matters are relevant regarding jurisdiction:
• The place in which the petition or suit in a matrimonial cause is filed.
• The court in which the petition or suit in a matrimonial cause should be filed, and Whether a court has jurisdiction depends on 1.Parties' domicile.
2.Place of solemnisation of marriage.
Thus I am of the opinion that if the above requirement is fulfilled, Indian Muslim can avail relief for RCR under FCA otherwise FCA will be discriminatory for Indian Muslim.
Vijay Raj Mahajan
(Expert) 19 January 2018
The Family Courts Act, 1984 was basically enacted for the formation of Family Courts in India to exclusively deal in Family matters relating to marriage, child custody, maintenance ,guardianship etc. The Family Court Act provides for formation of such courts in the whole of the territory of India except state of Jammu & Kashmir . The Act provides the jurisdiction under section 7 of all cases the Family Court can take-up and decide as provided:
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 proceedings of 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 matrimonial status 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;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
No doubt the Family Court can decided the petition for Restitution of Conjugal Rights, but here the question is not of procedural law but subjective law.
The question is whether there is any subjective law with regard to Restitution of Conjugal Rights in the Muslim Shariat Law that covers all Indian Muslims or not. There was never any Matrimonial Law enacted for Muslim Men in India. The Matrimonial Law in Pakistan or any other country has nothing to do here in India. The Central Government and Muslim Community has never thought of bringing any subjective matrimonial law for all (both male and females) Muslims in India in line with what exists for other Communities like Hindus, Christians, Parsis in India. Unless a subjective Muslim Law exists for Indian Muslims where provision of Restitution of Conjugal Rights is provided, simply because the Family Court has jurisdiction to decide such Petition will not suffice and satisfy the process of law.
Another important issue is that the Family Court has to issue decree of RCR and for that the exact provision of subjective law the decree is being drawn and issued has to be mentioned. How it will happen for Muslim men, under which subjective law the decree will be drawn?
N.K.Assumi
(Expert) 19 January 2018
Vijay Raj Mahajan Sir, the said provisions in explanation:-The suit and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely: (a) ..........or Restitution of Conjugal Rights or ....! Yes, subjective or personnel laws governing particular caste or community, but does it mean that such Indian citizen cannot lean on statutory laws prevailing in India, and of course not Pakistan Laws, but laws prevailing in India..
It is also pertinent to note that there is no conflicts of law between Muslim personnel Laws and the Indian Laws on RCR.
Vijay Raj Mahajan
(Expert) 19 January 2018
Please don't confuse the Procedural Law with the Subjective Law.
The Family Court will draw the decree of RCR for a Hindu under section 9 of the Hindu Marriage Act,1955 and under which Section and Act the decree of RCR will be drawn for Muslim by the Family Court?
The lack of subjective matrimonial law for Muslims in India is problem for Politician to resolve not lawyers and judges. The Central Government is sleeping for last 67 years for not implementing Common Civil Code so there is common civil law as we have common criminal law in India so that the equality exists for all Indian in true sense, for this lawyers and judges not to be blamed or asked to take steps in this regard.
N.K.Assumi
(Expert) 19 January 2018
Although Muslim law is based on Masculine Jingoism, marriage under muslim personnel laws also envisaged "consortium" Love and Companionship and recognized by Quaran, which is the fountain head of any kinds of marriage without which the meaning of husband and wife has no meaning. Thus even under Muslim law wife also has a right to ask for RCR, but under Muslim personnel law which is based on Masculine Jingoism, it is very difficult for a Muslim wife to provide her such a remedy as the husband will immediately give her talaq. Relief of RCR being equitable relief it should be exercise with equitable considerations irrespective of personnel laws by exercising the equitable discreations of the court.
N.K.Assumi
(Expert) 19 January 2018
Vijay Raj Mahajan Sir, it is always a great pleasure to discussed with you as you have so much to give to me and all other in LCI, with your erudite learning, but as of now I have to leave the forum. Hope to see you again for more discussions..
P. Venu
(Expert) 20 January 2018
Under Muslim Law, marriage is more or less a contract; as such a suit under the provisions of the Civil Procedure Code could be filed for restitution of conjugal rights. The court is required to decide the issues based on the principles of Mohammedan Law.
P. Venu
(Expert) 05 July 2018
Ms.Usha Kapoor:
Kindly spare us from valueless postings!
