An Overview Of Conjugal Rights And Obligations In Islam

An Overview Of Conjugal Rights And Obligations In Islam

The word conjugal comes from the Latin word “conjux“, meaning “husband, wife”, but it can be used to describe anything that happens between married people, such as conjugal obligations which keep a marriage going, or just general conjugal relations, or married life.

The obligations arising out of marriage are also laid down by the law. An important obligation is a consortium which not only means living together but also implies a ‘union of fortunes’. A fundamental principle of matrimonial law is that one spouse is entitled to the society and comfort of the other. Thus, where a wife refuses to live with her husband without any lawful cause, the husband is entitled to sue her for the restitution of conjugal rights and similarly, the wife has the right to demand fulfilment by the husband of his marital duties.

When either the husband or wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights. Where a question arises as to whether there has been a reasonable excuse for withdrawal from the society of the spouse, the burden of proving reasonable excuse shall be on the person who has withdrawn from such society.

Marriage is considered more of a religious than a social or legal contract in the Pakistani society. For example, DF Mulla in Mohammadan Law explains that the object of marriage is procreation and legalization of children.

The Holy Quran gives husbands the right to retain their wives with kindness or part with them with an equal consideration. However, if the husband has not paid the dower money, he cannot ask for the restitution of conjugal rights under Islamic law. It is further discussed in the hedaya that until the wife receives her dower from the husband, she may refuse a carnal connection with him. The husband can divorce a wife who is unwilling to live with him, or marry another woman, leaving his first wife in peace.

Allah Almighty has confirmed similar rights of the spouses with corresponding recommendations to both, in order to promote affection and mercy between them and to urge each of them to care for the other in the best way.

The following are some of the commands directed towards men:

  • Allah Almighty says: “And live with them in kindness.” (Quran 4:1)
  • At another place, the Prophet (peace be upon him) said: “I sternly warn you against denying the rights of the orphan and the woman.”
  • The Messenger of Allah also said: “Fear Allah regarding your women, for you have taken them by the covenant of Allah.”

The following are some of the recommendations directed towards women:

  • The Prophet (P.B.U.H) said: “The best of your women are those who are affectionate, fertile and who soothe their husbands and obey them.”
  • The Prophet (P.B.U.H) said: “The best woman is the one who pleases you when you look at her, obeys you when you bid her, and safeguards your honor and property in your absence.”
  • The Messenger of Allah said: “If a woman performs her five obligatory prayers, fasts the month of Ramadan, maintains her chastity and obeys her husband, she will enter Paradise.”

The Quran and Sunnah indicate that all rights between spouses are to be fulfilled within a framework of love and affection. If, for any reason, their mutual affection becomes weak, each of them should still maintain the other’s rights with mercy, which incorporates kindness and faithfulness. Allah Almighty ordains that with regard to fulfilling the rights of the other, one should constantly question oneself whether or not he or she has done so. If the answer is in the positive, then that is good for him or her; otherwise, he or she must be truthful in his or her determination [to change], seek the help of Allah and avoid feeling incompetent, for He is indeed with those who are patient.

The obligation of the wife to live with her husband is not absolute. The law recognizes circumstances which justify her refusal to live with him. For instance, if he has deserted her for a long time, or if he has directed her to leave his house, he cannot ask for the assistance of the court to compel her to live with him. The irregularity of marriage is also a valid defence to a suit for the restitution of conjugal rights, as it is necessary for a marriage to be valid according to Muslim Law, before the courts can grant a decree for restitution of conjugal rights. Islam does not force upon spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation.

The restitution of conjugal rights is often regarded as a matrimonial remedy. As understood, the restitution of conjugal rights is a part of the personal laws of the individual, thus it is guided by ideals such as religion, tradition, and custom. A very important feature of restitution of conjugal rights to be emphasized is that it is a remedy aimed at preserving the marriage and not disrupting it, as in the case of divorce or judicial separation. So the remedy of restitution of conjugal rights tries to promote reconciliation between the parties and maintenance of matrimonial life. It tries to protect the society from denigrating. But the final decision is that of the parties whether or not to obey the decree of restitution of conjugal rights and continue with the matrimony.

The fact is that the legal system considers marriage to be a contract between two consenting individuals who undertake to fulfil certain obligations towards each other. So in fact, a suit for the restitution of conjugal rights seems to be analogous, although different, to the enforcement of a contract made between two consenting persons with respect to certain obligations.

Contracts between two individuals with no contact other than business can’t be enforced by law as the court cannot force them to work together against their will nor can it supervise adherence. One wonders how one can defend the enforcement of a marriage contract, and the obligations of each party thereunder, which not only involves two individuals working with each other but also spending their lives in support of each other.

The concept of ‘master and servant’ may provide a partial answer, as in such a situation, one of the parties usually wants to escape contract, and therefore, the two parties cannot be forced to work together. However, a case of restitution of conjugal rights results when neither party wants to end the marriage contract, yet one or both parties refuse to adhere to the terms of the same. For example, a wife may claim maintenance under the contract, yet not undertake her own responsibilities as per the agreement. Similarly, a man may want the return of his wife to the home but is still not willing to fulfil the rest of his obligations as envisaged in the contract.

In such a situation, the suit envisions that both parties must fulfil their obligations under the marriage contract, unless they are pursuing the remedy of dissolving or annulling the contract via various modes present in the law itself. However, much like personal service contracts, adherence to a marriage contract cannot be effectively ensured via supervision by the courts. Hence, the question of whether the court should have the authority to interfere in such matters remains a valid concern.

The courts tend to protect the rights of women, by laying limitation on the misuses of restitution of conjugal right by husbands, and although the courts generally lean in favor of wives, the abuse of this right by husbands in cases where wives press for dissolution create hardship for the wives and burden on the judiciary.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Jawaria A Kashif

The writer is a lawyer and practises mainly in family/civil matters. She is also associated with Monthly Rawabit International Magazine and Watan News International Magazine. She writes on legal and social issues.



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10 Comments

  1. Fahad said:

    Very well written Ma’am… rather a door of wisdom u have opened for people like me who r lurking in the darkness of ignorance. Thank u

    • sulaman hassan said:

      a lot of problems is illiteracy, like u other scholars is also requested to write and speak more and more write on every forum if our society learnt and made then our major problem will automatically be solved

      • Jawaria A Kashif said:

        Yes every one has to add his share to bring the change in society

  2. Shaista said:

    I think I was lucky today to come across this as I do need legal information regarding a very serious but comparitively rare form of abuse ( I dont know if this will be counted as abuse or not!
    If a man who knows he is gay, marries a girl, both have difficulty in leading a fulfilling life, man strays and develop strong bond with a gay man in secret. Then over the time his secret afffairs grow in numbers and intensity while relationship with wife is reduced to being housemates, without any intimacy, after the birth of two children. Wife discovers the reality of her husband and thier marriage after 28 years. She is traumatised and broken.
    My question is that does the law recognise denial of conjugal rights by the husband as abuse ( there was never an physical intimacy after birth of second child who is 26 year old now)
    Can the husbands relationships with men and denial of intimacy over a prolonged period give the woman rights to annul (khula) the marriage.
    I am hopeful because your article says “The courts tend to protect the rights of women, by laying limitation on the misuses of restitution of conjugal right by husbands, and although the courts generally lean in favor of wives, the abuse of this right by husbands in cases where wives press for dissolution create hardship for the wives and burden on the judiciary.”

    If possible please tell me the rights, if any, such a has in Pakistani law and if there are none then what can be done to protect women from such abuse. Or how can such women be compensated by law
    Answer from legal experts is important because this is an issue which is very much there but we pretend that it does not exist and such women need protection and help just like victims of rape.

    • Jawaria A Kashif said:

      You have raised a very important question and its a bitter reality of our society. These type of issues almost remain unsolved because the victims of these types don’t raise their voice over it. In this type of situation the woman can file a same suit i.e. restitution of conjugal rights and the husband had to answer in the courtwhy he not performing his matrimonial obligation and the burden of proof will be om the wife she had to prove that her husband is gay and also to file this type of suit for a Pakistani would be considered a very bold step as these cases are rare which come in the knowledge of the court. Other legal aspects will be seen too. Legal expert opinion could be provided to you later .

  3. Rukhsana said:

    Hi maam,
    Will u plz guide me the dowry status after khula,,,as inlaws are not willing to give back.what are the legal actions a women can take to bring back her belongings and the appropriatr procedure.

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