JUDGMENT SUMMARY:
In the case Anis begum vs. Muhammad Istafa, CJ Shah Sulaiman gave a rational view on Muslim marriage saying that it is not only a civil contract but is also a religious rite.
DATE OF JUDGMENT:
25th April 1933
JUDGES:
Hon’ble Chief Justice Shah Sulaiman
PARTIES:
- Anis Begum and Others – Appellants (Original Defendants)
- Malik Muhammad Istafa Wali Khan – Respondent (Original Plaintiff)
SUMMARY
It was held by Chief Justice Sulaiman that there was no absolute right to a husband to unconditionally assert conjugal rights. The Courts have the freedom of choice to make the decree of restitution of conjugal rights dependant on the payment of dower unpaid to the wife even if the marriage is already consummated.
AN OVERVIEW
The case deals with the appeal for restitution of conjugal rights under Muslim Law. The Prompt Dower was Rs. 15,000/-. The parties were married in 1903 and the wife was sent to the husband’s house in October 1926 and consequently gave birth to a daughter before she was taken by her parents under the pretext of a ceremony and after a week refused to send her back to the husband’s house. However, the daughter was sent back to the father’s house.
The husband contended that the wife must be sent back to his house and that a perpetual injunction is granted against the other defendants from interfering.
It was submitted by the wife that the husband had become immoral and contracted an illicit connection with another woman who was kept in the same house and at her (the wife’s) instigation began to treat her cruelly and eventually turned her out of the house.
The wife pleaded that when she was neglected and wasn’t paid her dower debt, she was obliged to file a suit to recover Rs. 15,000 as her prompt dower and that the husband’s suit was filed as a reply to her suit. She submitted that she was living away from her husband on her own accord due to fear of life and honour and wasn’t influenced by anyone else.
In the subordinate court,the decision was in favour of the husband.
ISSUES
- Whether the Respondent had been guilty of cruelty towards Appellant?
- Whether any prompt dower was due to the wife and if so can Respondent get a decree without paying it?
- Whether the Respondent has any cause of action against the other Defendants?
- What relief was Respondent entitled to and against whom?
IMPORTANT PROVISIONS
Section 2 of the Muslim Marriage Act, 1939: When either the husband or the wife cease to cohabit with the other without a just and reasonable cause, then either can seek a decree for restitution of conjugal rights.
ANALYSIS OF THE JUDGMENT
1. The learned Chief Justice considered the question of whether under the Mahomedan Law, the right of a wife to insist on the payment of the prompt dower subsists even after consummation of marriage.
2. The advocate for the Appellants in his argument included a well-known judgment delivered by Moulvi Sami Ullah, District Judge of Rai Bareilly in 1891, in which original authorities were cited to challenge the opinion of Justice Mahmood, regarding the distinction of wife’s right whose prompt dower remains unpaid to resist restitution of conjugal rights even after consummation.
3. The Hon’ble Chief Justice took into consideration the judgment given by Justice Mahmoodthat the loss of the absolute right of the wife to resist the claim for restitution of conjugal rights did not stop the Court from making the prior payment of the dower debt a condition precedent to the execution of the decree for restitution of conjugal rights.
4. It was observed that the contention of the wife was that the right of cohabitation does not accrue to the husband at all until he has paid the prompt dower.
5. It was argued by the Respondent’s counsel that the husband had a substantive right to claim restitution of conjugal rights after consummation, even though the dower had not been paid. It was said that it was not a matter of mere process but is a substantive right under the Muslim Law which the Court had no choice to refuse.
6. It was recognized that the court hadthe power to take into account all the circumstances of the case to be fair and reasonable while passing a decree for the restitution of conjugal rights.
7. It was held that the husband doesn’t have an absolute right to claim restitution of conjugal rights against his wife unconditionally. It depends on the courtto make the decree conditional on the payment of the wife’s unpaid dower or to impose other suitable requirements which are just, fair and necessary in the circumstances of each case.
8. The Hon’ble Judge gave the following reasons for the same:
i. That there were original texts of undisputable authority where such a condition had been directed.
ii. The amount of the dower debt was not excessive, and there is no suggestion that it was in any way beyond the means of the Respondent who claimed to be related to the late Nawab of Rampur.
iii. The Appellant had contested the Respondent's claim for dower, and despite her contest, the Respondent obtained a decree which had become final.
iv. The present suit was filed after the institution of the suit for dower, and if the Appellant is compelled to go to live in the Respondent's house she may find it very difficult to realize her decree for dower which would, in that case, become futile.
v. The Respondentalso remained quiet and did not go to court for the restitution of conjugal rights till the claim for dower was made in the Court of Law and there is ground for comprehending that the suit was by way of invalidating the decree for dower. The decree for dower was attached by the Respondent in the execution of his decree for restitution of conjugal rights when the Appellantrefused to obey the decree.
vi. The conduct of the Respondent as revealed by the finding on a point made it fair and just that he should be called upon to pay the dower debt before he has possession of his wife.
vii. Further, the question which had arisen was whether the Appellant succeeded in establishing legal cruelty which would disentitle the Respondent from claiming restitution of conjugal rights. That question was factual and depended mainly on oral evidence.
9. After discussing the evidence and the circumstances of the case, the Hon’ble Judge further held that that the husband had misbehaved. That keeping a mistress in his house along with his wife,consequently caused mental pain to the wife. The Court held thatthe husband must have treated his wife cruelly when there were disputesthat couldn’t be patched up as long as the mistress remained in the house. Hence, the wife had a reasonable fear of injury to herself.
10. The Hon’ble Judge further held that the wife’s decision of refusing to go and live with her husband so long as he promised not to keep the mistress in his house was justified. She could go to live with him only if a separate house was given to her. He also held that to protect her safety she needed to have the option of keeping one female servant and one male servant, according to her choice, in the house.Mr. Khwaja, on behalf of the Respondent, agreed to the last-mentioned conditions.
11. The evidence against the Appellants 2 to 5 was held null and the judgment was concluded.
12. The Appeal was partially allowed and conditions were imposed on the decree of conjugal rights.
CONCLUSION
The case helps restore the faith of Muslim women in the judicial system. Restitution of conjugal rights is the only remedy a deserted spouse can use against the other. If the husband sues for restitution of conjugal rights before the marriage is consummated, then the failure to pay the dower is a defense to the suit; but if the suit is brought after the marriage is consummated, then a decree for restitution of conjugal rights on payment of prompt dower can be passed. So, in the end, it can be concluded that in such matters, the court decides to make the decree of restitution of conjugal rights conditional on payment of wife’s prompt dower which is due even when the marriage has already been consummated.
Through a decree of restitution of conjugal rights, the party at fault is ordered to live with the aggrieved party. In Abdul Kadirvs Salima and others, the Hon’ble High Court of Allahabad decided that the concept of restitution must be decided on the principles of Muslim law and not on justice, equity, and good conscience. However, in Anis Begum vsMohd. Istafa, the court took a progressive stand and held that Muslim marriage is not only a civil contract but also a religious sacrament and that the Court has a right to be just and reasonable. Accordingly, the Hon’ble court took into consideration all the evidence and a decree for restitution of conjugal rights was passed subject to the condition that the husband made his payment of Rs. 15,000/-.
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