Introduction

• The non-payment of dower does not bar the right of husband to file for restitution of conjugal rights and to claim judicial remedy.

Facts

• The appellant and the respondent were a married couple and for three months of their marriage were living together.
• After three months the respondent went to her father’s house and after that her father disallowed her to go back to her husband’s place.
• The appellant made several attempts to talk to his wife’s father, but nothing happened.
• The appellant then filed a suit for Restitution of Conjugal rights against the respondent and her father.
• The respondent in return filed a Divorce petition, also filed for cruelty and non-payment of dower.
• The first two contentions of the respondents were dismissed by the court.
• The court gave importance to the contention of non-payment of dower.
• The appellant paid the dower amount before the court.
• The court issued a conditional judgment for the reinstatement of conjugal rights, contingent upon the payment of the dower.
• Aggrieved by the decision both the parties appealed before the Appellate Court.
• The appellant’s appeal was dismissed by the Appellate Court on the ground that the amount of dower was not paid by the appellant before filing for Restitution of Conjugal Right and therefore he cannot seek a judicial remedy.
• The matter related to maintainability of claim of amount of dower was referred to Allahabad High Court.

Issues Involved

• Whether a petition for restitution of Conjugal rights be filed without paying the amount of dower?
• Whether nonpayment of dower makes the husband ineligible to seek judicial remedy?

Observations

• The Allahabad High Court observed that a Muslim marriage is a legal contract rather than a sacrament.
• The judgment of the Allahabad High Court was based on Moonshee Buzloor Ruheem v. Shums-oon-nissa Begum (1867).
• In this case, the Allahabad High Court clearly stated the roles and responsibilities of the spouses towards each other.
  • The Allahabad High Court held that the wife can refuse to live with her husband and refuse sexual intercourse as long as the prompt dower is not paid to her.
  • If sexual intercourse has been committed between the spouses with free consent, then a conditional decree of restitution on the prompt payment of the dower amount can be passed.
  • It was held that the defense of payment of dower could modify the decree, making its enforcement conditional on the prompt payment of the dower amount.
  • The court transformed the suit for restitution of conjugal rights into a suit for reciprocal rights of cohabitation.

Conclusion

• The Allahabad High Court concluded that the non-payment of dower does not bar the right of the husband to file for restitution of conjugal rights and to claim judicial remedy.