Why don’t Indian courts get a Muslim wife’s right to a separate accommodation correct?

In Islam, a wife has an absolute right to demand a separate house from her husband sans any “reasonable cause”.

“I want a separate house with you — privacy from my in-laws!”, a wife told her husband.

“Not possible”, the husband replied.

The wife started living with her parents.

Well, here comes what is bound to come from a matrimonial lawyer — a suit for Restitution of Conjugal Rights.

The suit got decreed.

‘Bad woman!’, inferred the Family Court.

The wife and the husband both have their respective rights to demand and to deny. I leave the perceptions of morality to the readers. What we will discuss is whether the very demand of a wife of her husband to provide her with an accommodation — separate from her in-laws — is illegal, notably, when the parties are Muslims.

What is the concept of Restitution of Conjugal Rights (RCR)?

Just like everything in inter-personal relationships and consequently the laws governing them, the concept of Restitution of Conjugal Rights [RCR] is a complicated subject. One can criticize it on the ambit of privacy and decisional autonomy, but then others can justify it on the basis of social morality viz. the sanctity of marriage and the relevance of the concept of divorce. One can raise questions such as – why not conciliation or divorce? Why would one rather abandon a relationship that births responsibilities and has consequences (not necessarily limited to two people) instead of choosing dignified ways to mend or end a broken relationship?

Restitution of Conjugal Rights is a complicated subject. One can criticize it on the ambit of privacy and decisional autonomy, but then others can justify it on the basis of social morality viz. the sanctity of marriage and the relevance of the concept of divorce.

Be that as it may, should courts mandate cohabitation? This central question perpetuates an even bigger debate against the very concept of RCR. Interestingly, the concept has been challenged, and the plea is pending before the Supreme Court.

Also read: A rights-based jurisprudence demands abolition of legal provision for ‘restitution of conjugal rights’

What is the relevance of RCR under  Muslim personal law?

Last year in December, the Gujarat High Court created some waves with its judgment on the issue of RCR among Muslims. It is central to remember that since Muslim marriage is a civil contract (as held by the Allahabad High Court in Abdul Kadir versus Salima (1886)), it stands on a different footing than matrimonial matters under other personal laws.

The Gujarat High Court’s judgment notes, “A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.” The judgment at a later point states, “But a decree, for the specific performance of a contract is an equitable relief and it is within the discretion of the Court to grant or refuse it in accordance with the equitable principles.”

The concept of RCR among Muslims has seen a significant change in India in the last century. The concept for Muslims under Indian Law goes as far back as 1867, when in Moonshee Buzloor Ruheem versus Shumsoonnissa Begum, the Privy Council held in the favour of a Muslim husband to “institute a suit in the civil courts of India for a declaration of his right to the possession of his wife, and for a sentence that she should return to cohabitation” (sic.).

In the Gujarat High Court’s judgment, the court, while stating that “the Mohammedan wife has got better rights than the English wife” records some of the defences available to a Muslim wife under Indian law. Some of these defences, inter alia, are an agreement at the time of marriage enabling a Muslim wife to live separate from her husband on certain contingency, non-payment of prompt dower, and charges of adultery, to even expulsion of the husband from the “caste” and cruelty by the husband, among other things. The Allahabad High Court, in Itwari versus Smt. Asghari (1960), created a presumption of cruelty to the first wife, in the case of filing of suit for RCR by the husband after he got married again in continuance of the first marriage.

Also read: A Muslim man’s second marriage though legal, can be construed as cruelty to first wife especially when lacking prior consent: Karnataka HC

Why is the Gujarat High Court judgment significant?

Coming to the present Gujarat high court judgment, the issue before the court was of a Muslim couple that got married in 2010 but were living separately since 2017. The husband had instituted an RCR suit against the wife. Before the family court, the wife (who was a working woman) wanted assurance, among other things, from the husband to provide her a separate house from her the joint family of her in-laws of about six members. The husband was not agreeable to this demand.

The family court held that the wife’s demand to live in a separate house with her husband away from her in-laws is not acceptable. While decreeing the suit, the court held, “It is a settled ritual of all the communities that after marriage, the girl has to join the family of husband and reside with the husband if he is residing in a joint family or join husband if he is residing separately. But nowhere the custom has allowed the wife to pray that she reside in a separate house with her husband and away from her in-laws, and even the law also does not recognize the same. A wife is expected to be with the family of her husband after marriage. If wife makes any such attempt or put any such condition, it would certainly be tortuous and unbearable for a man to be forced to choose between his aging parents on one hand and his wife and children on the other.”

The court went on to observe that since the wife was a working woman, she was unable to “cope-up and was feeling over-burdened and over-worked, due to which she would have decided to reside separately from the joint family” of the husband. It held that the condition of a separate house is “not acceptable in the eyes of law” and “does not appear to be a reasonable cause for living separately” as per Muhammadan (sic.) law.

The matter accordingly reached the Gujarat High Court.

Under Islamic law, a Muslim wife under no circumstances can be compelled to live with her in-laws, leave alone a co-wife.

The high court made an appreciable attempt at clarifying some important issues in the right direction, including the contractual nature of Muslim matrimony, refusal of the conjugal relief on account of unnecessary harassment by the husband, and that the first wife cannot be compelled to share consortium with a second wife (an obiter which was not related with the facts of the present matter), among other things. The high court noted that “the wife was not comfortable at her matrimonial home on account of various domestic issues.” Placing reliance upon the contractual nature of Muslim marriage and equitable principles, the court quashed the decree passed by the family court and dismissed the suit.

Also read: ‘Restitution of conjugal rights’ is an archaic, unconstitutional law and its time is up

Does a Muslim wife have an absolute right to a separate accommodation?

I shall briefly explore the specific issue of separate accommodation for a Muslim wife on which the high court remained silent. It is clarified that the present discussion is confined to the Islamic law position.

At the outset, it is stated that in Islam, a wife has an absolute right to demand a separate house from her husband sans any “reasonable cause”. To substantiate this view, I will place reliance on some of the renowned juristic works of Islamic law. Fatwa-i-Alamgiri, the primary and most authentic digest of Muslim laws in India, states, “It is obligatory upon a husband to arrange an accommodation for his wife where there is no interference from his family except if the wife has no objection in living together with her in-laws”. (pg 17, Book: An-Nafqa, Volume 1, Chapter 556)

Another authoritative work of Islamic law, Fatwa Shaami, emphasizes that “arranging an accommodation for the wife where there is no interference of the families of husband and wife is mandatory upon the husband”. (Vol. 2, pg 544)

One of the renowned jurists of Islam, Allama Kasani said about the obligation to provide a separate home if one’s wife does not want to live with one’s parents or family, “If the husband wants his wife to live with her co-wife or in-laws—such as the husband’s mother, sister, daughter from another wife, or his [other] relatives—and she refuses to do so, then he has to accommodate her in a separate house. (emphasis supplied) (Badai al-Sanai, 4:24). Another Islamic treatise, Al-Bahraul Raiq, states, “It is the responsibility of a husband to provide for the residence to the wife thus the arrangement for a residence is mandatory upon a husband like maintenance. It is not acceptable from a husband to compel his wife to share her house with somebody else as that shall yield discomfort to his wife.” (Vol. 4, pg 193)

In other words, it is made obligatory for a Muslim man to provide separate accommodation for his wife in case she demands the same. It is interesting to note that in case of refusal or failure to do so, Islamic law sees such refusal and failure to be a valid ground for a wife to seek a divorce, since Muslim law does not recognize ‘judicial separation’. Not only this, interestingly, a Muslim husband is bound to maintain his wife even if a Muslim wife earns more than him. Needless to say, under Islamic law, a Muslim wife under no circumstances can be compelled to live with her in-laws, leave alone a co-wife.

Also read: To codify or not to codify Muslim Personal Law, that is the question

Why is the family court decision in this case flawed?

Interestingly, the condescension regarding the demand of a Muslim wife for a separate house with her husband in the family court’s decision has roots in the misconstrued understanding where the Indian joint family system is perceived to be an intrinsic part of the personal laws of all communities in India. The incessant emphasis on the joint family system in inter-personal relationships, often found in our judicial pronouncements, is confusing. Particularly, when the Indian law does not provide benefits of a Hindu Undivided Family to all communities and the very concept of joint family not being present in Islam is a settled legal question.

The incessant emphasis on the joint family system in inter-personal relationships, often found in our judicial pronouncements, is confusing. Particularly, when the Indian law does not provide benefits of a Hindu Undivided Family to all communities and the very concept of joint family not being present in Islam is a settled legal question.

In India, high courts have mostly been of the opinion that a demand for a separate house by the wife without a ‘reasonable cause’ is not justified. The Bombay High Court had, in 2015, held such demand by the wife as cruelty against the husband. Interestingly, Section 19(1)(f) of the Protection of Women from Domestic Violence Act, 2005 perhaps for the first time, incorporates the imagination of separate accommodation for the wife in the general legal context though only when she is aggrieved by domestic violence.

In the present matter, we witness that not only did the family Court criminalize the wife’s rightful choice, it further presented a wrong reading of the Islamic law to justify its approach.

(The author records gratitude to Mufti Tabrez Alam Qasmi for his valuable guidance on the Islamic position.)

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