Can a Wife Refuse to Live with Her Husband in Pakistan?

Marriage is a solemn bond in Islam, carrying with it rights and responsibilities for both spouses. In Pakistan, marital rights are governed by Islamic principles and the laws derived from them. This article delves into whether a wife can refuse to live with her husband under Pakistani law, supported by legal, Quranic, and judicial references.

Legal Framework in Pakistan

The primary laws governing family and marital disputes in Pakistan are:

1. Muslim Family Laws Ordinance, 1961
2. Dissolution of Muslim Marriages Act, 1939
3. Family Courts Act, 1964
4. Relevant Provisions of Sharia (Islamic Law)

Relevant Legal Provisions

1. Section 9 of the Muslim Family Laws Ordinance, 1961: This section relates to the maintenance of the wife and her right to claim maintenance if the husband fails to fulfill his financial obligations.
2. Section 2(ii) of the Dissolution of Muslim Marriages Act, 1939: This provision allows a wife to seek dissolution of marriage if the husband treats her with cruelty or fails to provide maintenance.
3. Section 5 of the Family Courts Act, 1964: Provides jurisdiction to family courts to hear cases related to restitution of conjugal rights and dissolution of marriage.
4. Section 281 of Muhammadan Law by D.F. Mulla: Discusses circumstances under which a wife may refuse to cohabit with her husband.

Grounds for a Wife to Refuse Cohabitation

Under Pakistani law and Islamic principles, a wife may have valid reasons to refuse living with her husband. These include:

1. Failure to Provide Maintenance (نفقہ):
   • A husband is obligated to provide financial support (nafaqah) to his wife. If he fails to fulfill this duty, the wife can refuse to cohabit.
   • Reference: Section 9 of the Muslim Family Laws Ordinance, 1961.
2. Cruelty (ظلم):
   • Physical or emotional abuse by the husband gives the wife the right to refuse living with him.
   • Reference: Section 2(ii) of the Dissolution of Muslim Marriages Act, 1939.
3. Mental or Physical Health:
   • If the husband is suffering from a contagious or severe disease, the wife has the right to refuse cohabitation.
   • Reference: Section 2(v) of the Dissolution of Muslim Marriages Act, 1939.
4. Compelling Circumstances:
   • If the husband enters into a second marriage without the consent of the first wife, she can refuse to live with him.
   • Reference: Section 6 of the Muslim Family Laws Ordinance, 1961.
5. Unfulfilled Mehr (مہر):
   • If the husband has not paid the agreed Mehr, the wife can refuse to live with him until it is fulfilled.
   • Reference: Relevant provisions under Muhammadan Law.

Quranic Perspective

The Quran emphasizes mutual respect, love, and understanding in marital relationships. It also acknowledges situations where separation may become necessary.

• Surah An-Nisa (4:34): “Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means.” This verse underscores the husband’s duty to provide for his wife.
• Surah Al-Baqarah (2:231): “Do not retain them (your wives) to harm them or transgress (against them). And whoever does that has certainly wronged himself.”
• Surah At-Talaq (65:2-3): “If they should be pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment.” This highlights the importance of providing maintenance even after separation.

Judicial Precedents in Pakistan

High Court Decisions

1. Mst. Khurshid Bibi vs. Baboo Muhammad Amin (PLD 1967 SC 97): The court held that a wife has the right to refuse to live with her husband if he fails to provide maintenance or treats her with cruelty.
2. Rehmat Ullah vs. Mst. Zarina Bibi (PLD 1984 Lahore 298): This case emphasized that a wife’s refusal to cohabit due to the husband’s second marriage without her consent is justified.

Supreme Court Decision

Muhammad Iqbal vs. Shazia Bibi (2012 SCMR 243): The Supreme Court affirmed that a wife could justifiably refuse to live with her husband if her safety and dignity are compromised.

Cultural and Societal Considerations

In Pakistani society, the refusal of a wife to live with her husband often leads to stigma. However, the law protects women from unfair treatment and ensures their rights are upheld.

Frequently Asked Questions (FAQs)

1. Q: Can a wife refuse to live with her husband if he marries another woman? A: Yes, under Section 6 of the Muslim Family Laws Ordinance, 1961, a wife can refuse cohabitation if the husband enters a second marriage without her consent.
2. Q: What should a wife do if her husband fails to provide maintenance? A: She can file a maintenance claim under Section 9 of the Muslim Family Laws Ordinance, 1961.
3. Q: Is cruelty a valid reason for a wife to refuse to live with her husband? A: Yes, cruelty is a valid ground for refusal and even for seeking dissolution of marriage under Section 2(ii) of the Dissolution of Muslim Marriages Act, 1939.
4. Q: Can a wife refuse to live with her husband due to unpaid Mehr? A: Yes, until the agreed Mehr is paid, the wife can refuse cohabitation.
5. Q: Are there any Quranic verses supporting a wife’s right to refuse living with her husband? A: Yes, verses from Surah An-Nisa (4:34) and Surah Al-Baqarah (2:231) support a wife’s right to dignity and fair treatment in marriage.

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Advocate Muhammad Azam Ch
Sattaria Law Associates
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