Restitution of conjugal rights

Basil Nabi Malik June 27, 2010

A newspaper recently reported that the estranged husband of the prime minister’s daughter has initiated legal action for the custody of his son and for the restitution of his conjugal rights. For most individuals, the topic epitomises the injustice against women in Pakistan.

However, few probably know that a suit for restitution of conjugal rights is actually interpreted as the resumption of cohabitation between husband and wife entailing all obligations placed upon both parties in terms of the marriage contract. It is also seldom known that in such a suit, which can be filed by either spouse, the court usually goes out of its way to protect the woman from an estranged husband trying to harass her. This is usually due to the fact that most judges realise the patriarchal system in place and the potential misuse of this legal provision.

The fact is that the legal system in the country 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.

Although under the law, enforcement of certain contracts is permitted, certain agreements are unenforceable due to the fact that the court can't supervise the execution of such contracts in addition to the ‘master and servant’ principle. The latter legal principle enunciates that where there is a contract between two individuals whereby one is employed to work solely for the other for consideration, a refusal by one to continue or adhere to the contract would constitute a claim of damages rather than that of specific performance, or enforcement, of the agreement. The rationale is that two unwilling individuals cannot be forced to work together if they no longer want to remain in the contract.

Now considering that contracts between two individuals with no contact other than business can't be enforced in law as the court can't force them to work together against their will nor can it supervise its adherence. One wonders how one can defend the enforcement of a marriage contract, and the obligations of each party there-under, which not only involves two individuals working with each other but 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 out of the 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 agreement. Similarly, a man may want the return of his wife to the home yet is not willing to fulfil the rest of his obligations as envisioned in the contract.

In such a situation, the suit envisions that both parties must fulfil their obligations under the marriage contract unless pursuing the remedy of dissolving or annulling the contract via the 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.

Published in The Express Tribune, June 28th, 2010.

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