Mst. Jani and another vs Mohd. Khan

S.M. Fazl Ali, C.J.—The point on which a reference has been made to this Bench is as to whether or not a decree for restitution of conjugal

rights can be passed at the instance of a husband who has been taken as a Khana Damad (husband of the resident daughter). There is no doubt

that there is a well-known custom in some parts of the Kashmir province for having a resident daughter by which a daughter after marriage

continues to live in her father's house and the husband has also to live in that house. It was submitted before us that as this custom had abrogated

the provisions of the Mohammedan Law, the husband can in no circumstance file a suit for restitution of conjugal rights either in his father's house

or outside. In support of this contention reliance was placed on a Division Bench decision of this court in Civil Second Appeals Nos. 201 and 204

of 2003 (J. and K.) Abdul Ahad v. Mst. Raja wherein Ghose, C.J. and Masud Hassan, J. observed as follows:

The learned Munsiff was of the opinion that the circumstance of a Khana Damad would not debar the husband from bringing a suit for restitution of

conjugal rights and that the appellant had not made out a case for such restitution. The custom of making Khana Damads is well known in the

valley and is widely prevalent. In this case the appellant admitted that he was taken as a Khana Damad. To this extent the Muslim law of marriage

stands abrogated and it imposes an obligation upon the husband to reside in the bride's father's house and not to compel her to leave it and reside

with him elsewhere. We agree with the view taken by the lower appellate court in this behalf. In these circumstances the appellant's suit for

restitution of conjugal rights did not lie.

On a careful analysis and perusal of these observations we do not consider this judgment as an authority for the general proposition that no suit

under any circumstance lies for restitution of conjugal rights at the instance of a Khana Damad. The Division Bench has rightly pointed out that the

Muslim Law has been abrogated only to a limited extent in so far as the custom imposes an obligation on the husband to live with his wife, but if the

wife without any lawful excuse refuses to perform her marital obligations in her father's house, a suit for restitution of conjugal rights would certainly

lie to enforce these obligations so long as the Khana Damad does not want to enforce these obligations outside the house of the father of the wife.

Thus if in the present case the wife has refused to live with the husband in her own house or to perform her marital obligations and the husband can

prove this fact, he is entitled to a decree for restitution of conjugal rights to the extent indicated above.

We, therefore, answer the reference accordingly. The case will now go back to the single Judge for decision on merits in the light of the opinion

given above.

J.N. Bhat, J.

I agree.

Jalal-Ud-Din, J.

I agree.