Whether a husband can successfully sue his wife for restitution of conjugal rights when he has not paid the prompt Dower? Will it make any difference in your answer where she had sex with her free consent before such a suit by her husband?

Question: Whether a husband can successfully sue his wife for restitution of conjugal rights when he has not paid the prompt Dower? Will it make any difference in your answer where she had sex with her free consent before such a suit by her husband? Refer to a leading decision on the point. [BJS 1987]

Find the answer only on Legal Bites. [Whether a husband can successfully sue his wife for restitution of conjugal rights when he has not paid the prompt Dower? Will it make any difference in your answer where she had sex with her free consent before such a suit by her husband?]

Answer

A Muslim wife living separately from the husband on account of non-payment of prompt dower, restitution of conjugal rights cannot be granted, subjected to certain conditions. If the husband sues for restitution of conjugal rights before consummation of the marriage takes place, then non-payment of dower is a complete defence to suit, and the suit will be dismissed.

If the suit is brought after the consummation of the marriage, then a decree for restitution of conjugal rights on payment of prompt dower is to be passed. There is no absolute right in a husband to claim restitution of conjugal rights against his wife unconditionally; the courts have the discretion to make the decree conditional on the payment of her unpaid dower debt or to impose other suitable conditions considered just, fair and necessary in the circumstances of each case.

It was observed in the case of Abdul Kadir v. Salima and Anr., (1886) ILR 8 All 149:

“The Muhammadan law of marriage recognizes nothing except right, in its legal sense, as the basis of legal relations and of those consequences which flow from them. And if the husband did not before payment of dower possess the right of cohabitation with his wife, it would follow as a necessary consequence in Muhammadan jurisprudence that, where the dower is prompt and cohabitation has taken place before the payment of such dower, the issue of such cohabitation would be illegitimate.”

In Sheikh Abdool Shukkoar v. Raheem-oon-mssa, N.W.P. H.C. Rep. 1874, it was held that

“a suit will not lie by a Muhammadan to enforce the return of his wife to his house, even after consummation with consent, until her prompt dower has been paid.”

The aforesaid rule was followed to its fullest extent in Wilayat Husain v. Allah Rakhi, I.L.R. 2 All. 831, and in the former of these cases, it was held that a Muhammadan cannot maintain a suit against his wife for restitution of conjugal rights, even after such consummation with consent as is proved by cohabitation for five years, where the wife’s dower is prompt and has not been paid.

---

• Muslim Law – Notes, Case Laws, And Study Material
• Test Series for Competitions