Dead at Home, Alive Abroad
Restitution of Conjugal Rights in South Asia
Abstract
The remedy of restitution of conjugal rights (RCR) has its roots in canon law. It was incorporated into Muslim, Hindu and Parsi personal laws through the judgements of the Judicial Committee of the Privy Council during the British colonial period. It has been abolished in the United Kingdom in 1970 when a Law Commission report found it ineffective in saving marriages. In South Asia, however, this remedy is still available despite constitutional challenges to it before superior courts. The Federal Shariat Court refused to declare this remedy invalid in its judgements reported in 2016. This is despite the fact that far from saving marriages, this remedy is routinely abused by husbands as a countermeasure in response to suits of maintenance, custody of children, recovery of dower and dowry, and dissolution of marriage. Devoid of any Islamic basis, the RCR remedy violates the right to liberty, privacy, and equality as guaranteed under the Constitution of the Islamic Republic of Pakistan 1973 and should be declared illegal and unconstitutional.
References
‘Abd al-‘Ati, Hammudah. The Family Structure in Islam. Indianapolis, IN: The American Trust Publications, 1977.
Alam, Md. Khurshid. “Legal Aspects of Restitution of Conjugal Rights.” The Dhaka University Studies 9, no. 1 (1998): 135-55.
Allah Dad v. SHO 2012 YLR 2926.
Ardaseer Cursetjee v. Perozeboye (1856) 6 MIA 348.
Chaudhry, Faisal. “Rethinking the Nineteenth Century Domestication of the Shari’a: Marriage and Family in the Imaginary of Classical Legal Thought and Genealogy of (Muslim) Personal Law in Late Colonial India.” Law and History Review 35, no. 4 (2017): 841-79.
Cheema, Shahbaz Ahmed. “Indigenization of Restitution of Conjugal Rights in Pakistan: A Plea for Its Abolition.” LUMS Law Journal (2018): 1-18.
Cheema, Shahbaz Ahmad. “Islamisation of Restitution of Conjugal Rights by the Federal Shariat Court of Pakistan.” Islamic Studies 58, no. 4 (2019): 535-50.
Fyzee, Asaf A. A. Outlines of Muhammadan Law. 5th ed. London: Oxford University Press, 1949.
Grapevine, Rebecca R. “Family Matters: Marriage and Citizenship in India, 1939-1972.” PhD diss., University of Michigan, 2015.
Gurdev Kaur v. Swaran Singh AIR 1959 Punj 164.
Smt. Harvinder Kaur v. Harmander Singh Choudhry AIR 1984 Delhi 66.
Hosna (Munna) v. Md Shajahan (Shaju) 51 DLR (1999) 295 (HC).
Khodeja Begum v. Md. Sadeq Sarkar 50 DLR (1998) 181.
The Law Commission No. 23, “Proposal for the Abolition of the Matrimonial Remedy of Restitution of Conjugal Rights” (Her Majesty’s Stationary Office, 1969).
Mahmood, Tahir. Islamic Law in Modern India. Bombay: N. M. Tripathi, 1972.
Mallat, Chibli. Islamic Family Law. London: Graham & Trotman, 1993.
Moonshee Buzloor Raheem v. Shumsoonissa Begum (1867) 11 MIA 551.
Muhammad Ashraf v. Muhammad Ilyas 2014 YLR 2247.
Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95.
Muhammad Hanif v. The State 2011 YLR 253.
Muhammad Javed v. The State 2012 YLR 695.
Mukhtar Ahmad v. The State 2011 MLD 1020.
Nadeem Siddiqui v. Islamic Republic of Pakistan PLD 2016 FSC 1.
Nadeem Siddiqui v. Islamic Republic of Pakistan PLD 2016 FSC 4.
Nelly Zaman v. Ghiasuddin Khan 34 DLR (1982) 221.
Mst. Nur Akhtar v. Md. Abdul Mabud Chawdhry 16 BLD (1996) 396.
Pearl, David S. A Textbook on Muslim Personal Law. London: Croom Helm, 1987.
Qamar, Naima, Maliha Zia, and Tara Khan. Deconstructing Conjugal Rights in Pakistani Law. Karachi: Legal Aid Society, 2019.
Qari Abdur Rasheed v. The State 2012 YLR 2142.
Qureshi, Mohammed Ahmad. Marriage and Matrimonial Remedies: A Uniform Civil Code for India. New Delhi: Concept Publishing Company, 1978.
Mst. Rukhsana Younas v. Aziz ur Rehman 2014 CLC 1751.
Saleem Ahmad v. Government of Pakistan PLD 2014 FSC 43.
Smt. Saroj Rani v. Sudharshan Kumar AIR 1984 SC 1562.
Sharmin Hossain Rupa v. Mizanur Rahman (Tuhin) 2 BLC (1997) 509 (HC).
Singh, Preet. “Restitution of Conjugal Rights: A Comparative Study.” PhD diss., Maharshi Dayanand University, Rohtak, India, 1995.
Tariq Mehmood v. Farah Shaheen 2010 YLR 249 (Lah).
T. Sareetha v. Venkata Subbhiah AIR 1983 AP 356.
Tyabji, Faiz B. Muhammadan Law. 3rd ed. Bombay: N. M. Tripathi, 1940.
Uma, Saumya. “Wedlock or Wed-lockup? A Case for Abolishing Restitution of Conjugal Rights in India.” International Journal of Law, Policy and The Family 35, no. 1 (2021), https://doi.org/10.1093/lawfam/ebab004.
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