By Shahnaj Huda Mam

1. RESTITUTION OF
CONJUGAL RIGHTS
Shahnaz Huda
DO NOT USE WITHOUT PERMISSION
APART FROM EXAM PURPOSES

2. Marriage---object of…..
One the main objects of a marriage is the legal
right to co-habit and live together as man and
wife.
Marriage legalizes sexual relationship.
It gives rise to the important right of
‘consortium’ which not only means living
together but implies also a union of fortunes
(Fyzee)

3. When a party to a
marriage without valid
reason ceases to live with
the other party to a
marriage, the former may
sue the latter for
restitution of conjugal

4. Although in the case of Moonshee Buzloor
Ruheem vs. Shamsoonnissa Begum [(1867)
11 MIA 551] the right to sue for restitution of
conjugal rights was defined as belonging to
the husband ……
Both husband and wife have the right to sue
for restitution of conjugal rights

5. • A fundamental principle of matrimonial law is
that one spouse is entitled to the society and
comfort of the other. Thus where a wife,
without lawful cause, refuses to live with her
husband, the husband is entitled to sue for
restitution of conjugal rights; and similarly the
wife has the right to demand the fulfillment
by the husband of his marital duties.---Fyzee
(1974:121)

6. The right of either party is
justiciable but not absolute.
The court has the discretion to
refuse to pass an order of
restitution

7. In the cases of Moonshee Buzloor Ruheem vs.
Shamsoonnissa Begum [(1867) 11 MIA 551] Anis
Begum vs. Muhammad Istafa (1933 55 All)
The courts refused to grant an order in favor of
the husbands because of, in the first instance,
cruelty and in the second, because the
husband was keeping a mistress in the house
which led to quarrels between them and
subsequent cruelty of the husband.
SO VIOLENCE OR CRUELTY OR THE POSSIBILITY
OF VIOLENCE/CRUELTY; LACK OF
SECURITY/SAFETY IS A GOOD DEFENCE.

8. Restitution of conjugal rights available
under Muslim, Hindu and Christian
laws in Bangladesh
• Muslims, Hindus and Christians can sue for
restitution of conjugal rights.
• Under the uncodified Hindu law applicable in
Bangladesh ‘either party can sue for
restitution of conjugal rights’ [Tekait vs.
Basanta 1901 28 Cal 751 (see Mulla)

9. Section 32 of the Divorce Act 1869
(applicable to Christians in Bangladesh)
provides for the Restitution of conjugal
rights:
• When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of
the other, either wife or husband may apply, by
petition to the district court or the High Court
Division, for restitution of conjugal rights and the
Court, on being satisfied of the truth of the
statements made in such petition and that there is
no legal ground why the application should not be
granted, may decree restitution of conjugal rights
accordingly.

10. BANGLADESH
• In Bangladesh Section 5 of the Family Courts
Ordinance 1985 has given the jurisdiction to
the family Courts to hear cases relating to
restitution of conjugal rights.
• A Muslim or a Hindu can go to the above
Court for restitution of conjugal rights but a
Christian cannot…. Christians are required,
under the Divorce Act, 1869 to petition the
High Court Division or the District Court…..
(Section 32)

11. QUESTION OF CONSTITUTIONALITY
OF SUITS FOR RESTITUTION OF
CONJUGAL RIGHTS
• In Nelly Zaman v. Giasuddin Khan (1982)
34 DLR 221, the court laid down that any
unilateral plea of a husband for forcible
restitution of conjugal rights as against a wife
unwilling to live with her husband is violative
of the accepted State and Public Principle and
Policy.

12. Nelly Zaman’s case….
• the wife refused to accompany the husband
when he got a job in Sylhet because it was far
from Dhaka where her parents resided. The
court recognized the changes which society
has gone through in the last decades, as well
as the principle of equality before and equal
protection of law to counter the traditional
concept of the use of compulsion to force the
wife to live with her husband. The court
opined that:

13. • ……..the unilateral plea of the husband for
forcible restitution of conjugal rights as
against the wife unwilling to live with her
husband has become outmoded and does not
fit in with the accepted state and public
principle and policy of equality of men and
women being citizens equal before law
entitled to equal protection of law and to be
treated only in accordance with law as
guaranteed in Articles 27 and 31 of the

14. In the following cases the HCD declared that the law
of restitution of conjugal right to be violative and
inconsistent with the provisions of the Constitution.
• Nelly Zaman vs. Giasuddin Khan 43 DLR (1991)
543
• Hosne Ara Begum vs. Alhaj Md. Rezaul Karim
& others (43 DLR (1991) 543
• Sharmin Hossain @ Rupa vs. Mizanur Rahman
2 BLC (1997) 509 (H.C.),
• Khodeja Begum and other vs. Md. Sadeq
Sarker 18 BLD (1998) and
• Sherin Akther Vs Md Ismail 51 DLR (1999) 512

15. On the contrary, in the following cases,
the law of restitution of conjugal rights
was held to be neither to be
discriminatory nor ultra vires the
constitution
Chan Mia (Md.) v. Rupnahar 51 DLR
(1999) 292 (H.C)
Hosna Jahan (Munna) v. Md. Shajahan
(Shaju) and Other 51 DLR (1999) 295
(HC)

16. • The judgment given by the HCD in
abovementioned Hosna Jahan (Munna) v. Md.
Shajahan (Shaju) and Other 51 DLR (1999) 295
(H.C.) was confirmed by the
Appellate Division in Hosne
Jahan vs Md Shahjahan 4 BLC
(AD) 117