Rabia Khatoon v Mukhtar Ahmad

  • Two suits were filed, one by Rabia Khatoon against her husband for dissolution of marriage and the other by Mukhtar Ahmad against the wife for restitution of conjugal rights. The marriage took place in 1948 and was consummated with the consent of the wife. In 1951, a child was born to them after which the wife went to live in her father’s house. The respondent went to bring his wife back but she refused to come back. No maintenance allowance was paid by the husband to the wife since 1951 and the suits giving rise to the present appeal were filed in 1956.
  • In the suit filed by the wife it was alleged that the husband had not paid her prompt dower which was settled at Rs. 5000; that she continued to perform her marital relations with her husband for over two year and a child was born to them; that the husband treated her cruelly compelling her to take shelter in her father’s house. The husband denied that he had treated his wife with cruelty. He alleged that the dower payable to the wife was deferred dower and it was only Rs. 500.
  • The lower courts held that it was not established that the husband committed physical cruelty upon his wife or that she was forced to leave her husband’s house due to his ill treatment. They further found that the dower was prompt dower and it was Rs. 5000 and that the husband had not paid the dower amount to the wife. On the question whether the husband had neglected to maintain his wife, it was found as a fact that the husband had not paid any maintenance amount to the wife ever since she had left his house.
  • The lower appellate Court was of the opinion that the wife having admitted the husband to sexual intercourse she was not entitled to refuse to live with him and that non-payment of dower could not be a good defense to the suit for restitution of conjugal rights. Thus, the Court decreed the husband’s suit for restitution of conjugal rights subject to the payment of Rs. 5000 as prompt dower, while the suit of the wife for dissolution of marriage was dismissed on the ground that she could not deny herself to the husband after consummation of the marriage merely because her dower had remained unpaid.
  • This case connected the second appeals and was referred by a single judge bench of the High Court to the division bench.

Legal Reasoning

1. Whether a Mohammedan wife has a right to refuse to go to her husband if her prompt dower is not paid even though the marriage had been consummated with the consent of the wife before the date of the refusal.

The Court drew heavily from the judgment of Sulaiman, C.J. in Anis Begam:

If the decision in Abdul Kadir were to be held as bad law it would not only create uncertainty in law but also disturb the domestic peace of Muhammedan families throughout India. According to one school of Mahomedan law a Muhammedan wife governed by Hanafi law has the right to refuse to go to her husband even after the consummation of marriage with her consent if her dower remains unpaid, but it would be dangerous to adopt this view at the present time having regard to the prevalent practice and the modern conditions of life. The Courts of law, as was pointed out by Sir Sulaiman, have certain discretion in this matter because a suit for restitution of conjugal rights is in the nature of a suit for specific performance and it is open to the Court to impose conditions on the husband to ensure the right of the wife to secure her prompt dower.”(para 12).

The Court thought it fit to impose conditions on the husband in a suit for restitution for conjugal rights where the prompt dower is not paid but maintained that non-payment of dower could not be pleaded by the wife as a ground to refuse cohabitation and dissolve her marriage.

2. Whether a Muslim husband has an absolute duty to maintain his wife under Section 2(ii) of the Dissolution of Muslim Marriage Act, 1939.

The two grounds upon which dissolution of marriage was sought were (a) that the husband had neglected or had failed to provide for her maintenance for a period of two years, and (b) that he habitually assaulted her or made her life miserable, which conduct amounted to physical ill treatment.” (para 14)

S. 2(ii) of the 1939 Act allows a Muslim wife to dissolve her marriage on certain grounds including “that the husband has neglected or has failed to provide for her maintenance for a period of two years”and cruelty.

There is no right in the wife to refuse to live with her husband after the marriage has been consummated with her consent. So long as she keeps herself away without the fault of the husband she has no right to claim maintenance from him. If maintenance is not provided by the husband on account of the wife’s wrongful refusal to live with him he cannot be considered guilty of negligence in maintaining her.”(para 18)

The Bench, speaking through Judge Uniyal, held that the husband had not erred in not providing maintenance to the wife where this (non-payment of maintenance) was the result of the wife’s misconduct. No guilt could be attributed to the husband in such a case.

Conclusion

1. A Mohammedan wife has no right to refuse to go to her husband if her prompt dower is not paid even though the marriage had been consummated with the consent of the wife before the date of the refusal. “If the decision in Abdul Kadir were to be held as bad law it would not only create uncertainty in law but also disturb the domestic peace of Muhammedan families throughout India.” (para 12)

2. A Muslim husband does not have an absolute duty to maintain his wife under Section 2(ii) of the Dissolution of Muslim Marriage Act, 1939. “If maintenance is not provided by the husband on account of the wife’s wrongful refusal to live with him he cannot be considered guilty of negligence in maintaining her.” (para 18)

Click here to download the full version of Refusal of Wife to Cohabit – Rabia Khatoon v. Mukhtar Ahmad

 

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