Gujarat High Court: The Division Bench of J.B. Pardiwala and Niral R. Mehta, JJ., while dealing with a matter regarding restitution of conjugal rights, stated that,

Section 281 of the Muhammadan Law deals with the aspect of the restitution of conjugal rights but does not throw any light as to in what circumstances, a decree for restitution of conjugal rights can be granted or declined.

Further, the Bench expressed that,

 A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.

The present appeal was filed under Section 19 of the Family Courts Act, 1984 by the original defendant-wife questioning the legality and validity of the order passed by the Family Court on suit instituted by respondent-husband for restitution of conjugal rights whereby the family court allowed the suit instituted by the husband directed the appellant-wife to go back to her matrimonial home and perform her marital obligations.


Respondent-husband’s case was that his wife left matrimonial home along with their minor son without any lawful ground and further even without informing anyone. All the efforts to bring back the wife failed and further the husband issued a legal notice to his wife, but the wife failed to respond.

In view of the above circumstances, the husband instituted a family suit invoking Section 282 of the Mohammedan Law for the restitution of the conjugal rights.

Family Court allowed the suit and passed a decree for restitution of conjugal rights in favor of the husband.

Further, the Family Court stated that the wife was a working lady and was not able to cope up with her household responsibilities, she thought fit to walk out of her matrimonial home on a lame excuse of being harassed by her husband and the other family members of husband.

Wife’s case was that she was being pressurized to migrate and settle in Australia considering that the appellant was a qualified nurse, and she may be able to secure a good job there. The appellant was dead against such idea of her husband and her in-laws and outright declined to leave her job at Palanpur and prepare herself to go to Australia.

The above stated was the cause of matrimonial disputes.

Analysis, Law and Decision

High Court observed that Family Court owes a duty to read something in between the lines so as to try to understand the root cause of the discord between the parties rather than going by the strict rules of evidence.

The different High Courts have held that the Family Court deals with disputes concerning the family and should adopt an approach radically different from that adopted in any ordinary civil proceedings.

Bench opined that the present matter is not the one in which it could be said that the wife left her matrimonial home along with her minor child with the intention to desert the husband.

It was clear that the wife was not comfortable at her matrimonial home on account of various domestic issues. If on account of all such problems, one fine day, she decided to walk out of her matrimonial home, could it be said that the husband straightway was entitled to have a decree for restitution of conjugal rights.

Court also stated that, the decision in a suit for the restitution of conjugal rights does not entirely depend upon the right of the husband.

When can restitution be refused?

The wife can set up the following defences to a suit for restitution of conjugal rights:

(1) That the marriage between the parties was not a valid marriage or is no longer binding. The existence of a valid matrimonial relationship is an essential condition for a decree in the suit. If the marriage is not valid (i.e., either irregular or void) restitution will not be allowed. So also if subsequently, the marriage has terminated, for example by reason of the husband having become an apostate or by the exercise by the wife of the option, on attaining puberty, of repudiating her marriage or of a power to the wife to divorce, restitution will be refused.

(2) That the husband was guilty of legal cruelty. For legal cruelty, “there must be actual violence of such a character as to endanger personal health or safety or there must be reasonable apprehension of it. A simple chastisement on one or two occasions would not amount to such cruelty. The Mohammedan law on the question of what is legal cruelty between man and wife does not differ materially. A good deal of ill-treatment, even if it is short of cruelty, may amount to legal cruelty. If the Court is of opinion that by the return of the wife to the husband, her health and safety would be in danger.

(3) That the husband made a false charge of adultery against the wife. Restitution will not, however, be refused if the charge was true.

(4) That there was gross failure by the husband in the performing of the matrimonial obligations imposed upon him for the benefit of the wife. Cruelty is not the sole defence. The Mohammedan wife has got better rights than the English wife. The Court may well admit defences founded on the violation of those rights. Conduct falling for short of legal cruelty (e.g. charges of immorality and heaping of insults) may be a good defence to a suit by the husband. In fact any reprehensible conduct on the part of the husband affords grounds for refusing to him the assistance of the Court. Expulsion of the husband from caste has been held to be sufficient ground for refusing restitution of conjugal rights. But the mere fact that the wife cannot get on with mother of the husband would not be sufficient ground.

(5) That, where the marriage has not been consummated, her prompt dower has not been paid. This would be a means for securing the payment of dower by the husband.

High Court elaborated stating that in a suit for restitution of conjugal rights by a Muslim husband against his wife, if the Court after a review of the evidence feels that the circumstances reveal that the husband had been guilty of unnecessary harassment caused to his wife or of such conduct as to make it inequitable for the Court to compel his wife to live with him, it will refuse the relief.

Court’ opinion on Polygamy

Muslim law permits the polygamy but has never encouraged it. The Muslim law, as enforced in India, has considered polygamy as an institution to be tolerated but not encouraged and has not conferred upon the husband any fundamental right to compel his wife to share his consortium with another woman in all circumstances.

The object behind Order XXI Rule 32(1) and (3) CPC is that no person can force a female or his wife to cohabit and establish conjugal rights. If the wife refuse to cohabit, in such case, she cannot be forced by a decree in a suit to establish conjugal rights.


High Court while concluding held that it should interfere with the impugned decision passed by the Family Court, hence the present appeal succeeded and the Family Suit instituted by the husband for restitution of conjugal rights invoking Section 282 of the Muhammadan Law was dismissed.[Jinnat Fatma Vajirbhai Ami v. Nishat Alimdbhai Polra, 2021 SCC OnLine Guj 2075, decided on 20-12-2021]

Advocates before the Court:

MR CHETAN K PANDYA(1973) for the Appellant(s) No. 1

KEWAL J SHAH(9579) for the Defendant(s) No. 1

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One comment

  • I dont know how do I start what I am going through but let me tell you all that I have applied for my conjugal rights (Order 7 rule 1 of the cpc, section 281 of the Mohammedan law)

    I have 2 daughters and my wife has left the house few months ago and send a notice that she wants to come back and needs a reply with in 15 days, if not a legal action would be taken against me. 90% of the notice is false and looking at this I applied for my conjugal rights. To reply to this she has put a case on me under section 125 demanding for 25Lakhs and the monthly maintenance of 30K. The entire gold and worth 4L is with her but she has mentioned that her gold wort of 500grams and dowry worth 4L and 2 activa bikes are under my custody which is completely false. The notice also reads that my family and I were beating her from the second day of marrige, physical and mental assult. We never demanded for dowry and neither they gave me 2 bikes nor 4L. Infact she has taken the entire gold and money with her. My mom suffered cancer and she passed away after 15 months of marrige and it was only me my day and my younger brother living at my house. I never demanded her to cook food or take care of them. Infact I thought her how to prepare food and maintain the house hold thing which she never learnt before marrige. She had been a lethargic women and never cooked food even for the kids. I also made her study and she completed her graduation and few computer courses. She never takes any sort of permissions before leaving house taking both the kids. I never want to fight with her using my kids shoulders nor want to separate the kids from the mother but I miss them a lot and if I fight for my kids and may use this weapon to hurt me again.

    I am not sure what I am suppose to do now I am blank, depressed nervous and suicidal. My work and health is impacted. I dont want to loose my job as I am the only source of income for my father, who is grown old and my kids. I am scared of loosing my respect in the society. I dont want to loose my father. I am ok to give everything possible for my kids.

    Please suggest me what do I do and how do I proceed and what needs to be done.

    Thank you

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