What is Khilwat-us-Sahiha under Muslim Law?

Question: What is Khilwat-us-Sahiha under Muslim Law? [RJS 2011]

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Answer

When the husband and wife are alone together under circumstances that present no legal, moral or physical impediment to marital intercourse, they are said to be in “valid retirement”. The term is also famously referred to as khilwat-us-sahiha in Muslim Law.

A valid retirement in Sunni law has the same legal effect as actual consummation as regards dower, the establishment of paternity, the observance of iddat, a wife’s maintenance during iddat, the bar of marriage with the wife’s sister, and the bar of marriage imposed by the rules. But it has not had the same effect as actual consummation as regards the bar of marriage with the wife’s daughter or the bar of re-marriage between divorcees. In both these cases, there must have been actual consummation.

So, the above excerpt unambiguously admits to the presumption of consummation if there is a “valid retirement”. If the husband and wife cohabit or live together without there being any other circumstance inhibiting or preventing their physical union, it can be presumed, unless otherwise proved, that the marriage had been consummated.

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