Institutions of marriage a sacrament or a contract, causes and remedies


Marriage: In pre – Islamic Arabia marriage was termed as “Nikah”  which meant different forms of relationship between a man and woman established on certain terms . The institution of marriage is considered to keep society from ill-acts and wrong deeds of man. As it is said that “What he does in this world he shall be rewarded for it in the next world and he who does not do so commits a sin.”



1)Under the Muslim law marriage is considered as a Civil Contract.  A contract for the purpose of legalizing sexual intercourse, and procreation of children –  Baillie’s Digest

2)Marriage among Mohammedan is not a  sacrament, but purely a civil contract- Justice Mahmood


1)Nikah in its sense , means carnal conjunction- Hedaya

2)Mohammedan jurist on the other hand regard marriage as to be partaking of both the act of nature of ibadat or devotional acts and muamalat or  dealings among men- Abdur Rahim

Essentials of a Muslim marriage:

  1. Proposal and agreement
  2. Sanity, attain majority
  3. Free consent
  4. At least of two witness
  5. If the marriage is fixed by the parents the either party may repudiate it at the option of puberty

According to the Indian Contract Act, 1872 the similar elements are required to make it a valid contract.

Reference to case study :

Thus it can be said that Muslim marriage is civil contract which are in the words of Prophet Of Islam said as “”Marriage is my Sunna and those who do not follow this way of life are not my followers.”  and that – “There is monkery in Islam”

Case  reference taken here is  of  : Shoharat Singh v. Jafri Begum, the Privy Council said that nikah is a religious ceremony. But in later years in the case of Abdul Kadir v. Salima  (1886) 8 All. 149 at 154 where Justice Mahmood said that Muslim marriage is purely civil contract and not a sacrament.


The Special Marriage Act of 1954 is on of the most important secular laws of the country. It allows people to marry irrespective of religion. This paper examines the matrimonial causes under the Act. It analyses provisions relating to restitution of conjugal rights and judicial separation, their scope and ingredients.  It also studies the relative and absolute grounds for nullity of marriage and the legitimacy of children born out of such marriages. Finally, the paper examines the grounds for divorce under the Special Marriage Act, and the requirements of each of these grounds.”

The main reason behind passing of the Special Marriage Act, 1954 was to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. The Act originated from a piece of legislation proposed during the late 19th century.

In 1872 Act III was enacted but later it was found inadequate for certain desired reforms, and Parliament enacted a new legislation. The Special Marriage Act, 1954 replaced the old Act III, 1872. The new enactment had 3 major objectives:

  • To provide a special form of marriage in certain cases,
  • To provide for registration of certain marriages and,
  • To provide for divorce.

The matrimonial causes under this act are-

Restitution Of Conjugal Rights


 On marriage, it is the primary duty of the parties to live together for the performance of their marital obligations. This right to cohabit with each other is called the right to ‘consortium’. It is the right that husband and wife have to each other’s society, comfort and affection. The origin of the action seems to lie in the early law concept of husband having a quasi-proprietary right over the wife. It included his wife’s society as well as her services. With the passage of time, the concept of consortium assumed a distinct footing of mutuality. Conjugal rights cannot be enforced by the act of either party and a husband cannot seize and detain his wife by force. If a spouse makes a breach of this obligation without any justifiable cause, the other can go to the court for the restoration of his conjugal rights.[i]

Section 22, of Chapter V of the Special Marriage Act, 1954, lays down the conditions on which a petition for restitution of conjugal rights would lie.

22. Restitution of conjugal rights.- When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply to petition to the district court 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.

Explanation. Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

The following are the elements of the section:

  • The respondent has withdrawn from the society of the petitioner.
  • The respondent has withdrawn without reasonable cause.
  • The burden of proof of reasonable cause is on the respondent
  • The petition is filed in the district court
  • The court is satisfied with the truth of the statement and there is no other ground for the denial of the relief.

Corresponding Law

This section corresponds to S. 9 of the Hindu Marriage Act 1955, S. 36 of the Parsi Marriage and Divorce Act 1869, S. 32 of the Divorce Act 1869 and S. 13 of the Matrimonial Causes Act 1965.


Where a spouse has withdrawn from the society of the other without reasonable cause, the aggrieved party may apply to the competent court for restoration of society and restitution of conjugal rights, on which the court will, in a proper case, make decree to that effect. A conjugal right is one vested in the spouse on marriage to live in a close society of each other for upholding the cause of matrimonial relations.

Withdrawal From Society

The word ‘society’ occurring in the section means the same thing as consortium or cohabitation, i.e., living together as husband and wife in the place called ‘matrimonial home’. So it is evident that withdrawal from society of the other would mean withdrawal from the matrimonial home by either spouse that would involve a total loss of consortium like desertion.Withdrawal from society involves two elements: animus and factum. This means that the withdrawing spouse has an intention to put the cohabitation to an end and secondly, mere intention to withdraw would not amount to withdrawal unless it is coupled with factum of separation on the part of withdrawing spouse.


Cohabitation does not necessarily mean that parties are living together under the same roof but there may be states of cohabitation where they see as much of each other as they can, and yet are not separated.

Kay v. Kay: A man may be cohabiting with his wife even if he is away on a visit or on business because the conjugal relationship is not determined in any shape or form thereby.

G v. G A husband cannot be taken as having deserted his wife without reasonable cause because his work in life compels him to live away from her.

Matrimonial Home

The principles of Shastric law were that the wife is bound to live with her husband and to submit herself to his authority. This rule of law that gave husband alone the right to establish a matrimonial home in preference to the wife was based on a custom, which reflected the condition of the age in which the custom was practiced. Moreover, the right of the husband to establish a matrimonial home is not a proposition of law, it is simply a proposition of ordinary good sense arising from the fact that husband is usually the bread earner and has to live near his work. In such circumstances it becomes quite natural that the husband should have the right for the choice of matrimonial home. The Constitution of India gives an equal status to both the sexes, thus both have an equal right to pursue their career. Now the casting vote as to the choice of matrimonial home is not with the husband or wife but it is a matter, which has to be decided amicably between them.

Case study: Wife’s refusal to give up job

The question as to what amounts to withdrawal from society has come before our courts in several cases in an interesting manner: does the wife’s refusal to give up her job at the instance of the husband amount to withdrawal from the society of the husband? The question came for consideration before the Punjab High Court in several cases and it was answered in the affirmative. In the cases Tirath Kaur v. Kirpal Singh[xi], Gaya Prasad v. Bhagwati[xii], and Kailashwati v. Ayodhiya Prakash[xiii], the courts held that the husband has a right to decide the matrimonial home and the wife must resign her job and live with him. As opposed to this extreme opinion the other view, as held in S. Garg v. K. M. Garg[xiv], is that in the present scenario of the society the wife cannot be prevented from taking up employment and cannot be forced to reside in the same place her husband is living. Neither party has a casting vote and the matter must be settled by agreement between the parties, by a process of give and take and by reasonable accommodation.

Without Reasonable Excuse

Once the petitioner proves that the respondent has withdrawn from his society, the burden of proving that he/she has withdrawn with reasonable excuse would be on the respondent. A petition for restitution will fail if it established that the respondent has withdrawn from the society of the petitioner with a reasonable excuse for doing so.

Under the modern matrimonial law, it will amount to reasonable excuse or reasonable cause:

  1. If there exists a ground on which, the respondent can claim any matrimonial relief. Thus if it is established that the petitioner has another wife (Parkash v. Parmeshwari[xvi]),is guilty of cruelty (Bejoy v. Aloka),or is adulterous (Laxmi Malik v. Mayadhar Malik) the petition will fail.
  2. If the petitioner is guilty of any matrimonial misconduct, not amounting to ground for a matrimonial relief, yet sufficiently weighty and grave.
  3. If the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him.


The jurisdiction to entertain a petition for restitution of conjugal rights under the section rests with the district court. District court has been defined in S. 2(e) of the Act. It means the principle civil court of original jurisdiction and a city civil court where there is such court. The jurisdiction of a district court can be invoked by an aggrieved party if any of the following qualifications is fulfilled:

  • The marriage was solemnized within the local limits of that court.
  • Both the husband and wife reside together within the local limit of that court.
  • Both the husband and wife last resided together within the local limit of that court.

Effect Of Decree For Restitution Of Conjugal Rights

On passing of a decree of restitution of conjugal rights, the decree holder is required to execute the decree under Order. XXI, Rule. 32, CPC.


Judicial Separation


Under English law, before the Reformation, the marriage was regarded by the church as a sacrament that made it impossible to get a divorce. In the case of a marriage validly contracted, the ecclesiastical courts granted ‘divorcium a mens et thoro’, i.e., divorce from bed and board, not enabling the parties to remarry. This remedy was not divorce, i.e., it did not dissolve the marriage. This remedy is now called judicial separation, which allows the parties to live separate from each other, without dissolution of marriage tie, with a possibility of re-uniting and living together again if circumstances subsequently change.

Section 23 of the Special Marriage Act provides for the relief of judicial separation.

(1) A petition for judicial separation may be presented to the District Court either by the husband or the wife:-

(a) on any of the grounds specified in sub-section (1) and sub-section (1A) of

Section 27 on which a petition for divorce might have been presented, or

(b) on the ground of failure to comply with a decree for restitution of conjugal rights;

and the Court, on being satisfied of the truth of the statement made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.

(2) Where the Court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statement made in such petition, rescind the decree if it considers it just and reasonable to do so.

Corresponding Law

This section corresponds to S. 10 of the Hindu Marriage Act 1955, S. 34 of the Parsi Marriage and Divorce Act 1936, S. 22 of the Divorce Act 1869 and S. 12 of the Matrimonial Causes Act 1965.

Grounds For Judicial Separation

A district court will entertain a petition for judicial separation either from the husband or from the wife on any of the following grounds that the respondent:

  1. Has committed adultery;
  2. Has deserted the petitioner without cause for a period of two years immediately preceding the presentation of the petition
  3. Is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code
  4. Has treated the petitioner with cruelty
  5. Has been incurably of unsound mind
  6. Has been suffering from venereal disease in communicable form
  7. Has been suffering from leprosy not contracted from the petitioner
  8. Has not been heard of as being alive for not less than seven years.

Where the petitioner is the wife, she can petition for judicial separation on the additional ground:

  1. That since the solemnization of marriage, her husband has been guilty of
  2. Rape
  3. Sodomy, or
  4. Bestiality; or
  5. That there has not been any cohabitation between her and the husband for not less than one year after passing a decree or order of maintenance against her husband in her favour, or
  6. That there has been non-compliance with a decree for restitution of conjugal rights by her husband.

The grounds aforesaid are similar to the grounds for divorce under S. 27 of the Act.

Power Of The Court

On presentation of the petition, the District Court must be satisfied as to the truth of the statement made in such petition. If the court is satisfied, it will pass a decree of judicial separation. After the passing of the decree, the parties are at liberty to live apart from each other. But the court may, on subsequent application by either party, rescind the decree of judicial separation if it considers it just and reasonable to do so[xxiii]. In a petition for divorce, if the petitioner fails to establish the alleged ground for divorce, though facts do establish a ground for judicial separation, the court has power to pass a decree of judicial separation, even though no such prayer has been made in the petition, as held in Bhagwan v. Amar Kaur.


The District Court will exercise jurisdiction for the petition of judicial separation provided:

  1. The marriage of the parties was solemnized, or
  2. The husband and wife reside, or
  3. Both the parties resided together within the local limits of that court as provided in S. 31(1) of the Special Marriage Act.

Effect Of Decree

The decree of judicial separation entitles the parties to live separately and cohabitation as the essential of marital relation is not obligatory on either party. But it does not break the marital status of husband and wife. No one can remarry till the decree for divorce. Either party may present a petition for divorce to the district court on the ground that there has been no resumption of cohabitation as between the parties for a period of one year or upwards after passing a decree for judicial separation.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.


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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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