Revisiting Abdul Kadir v Salima: Locus Classicus on Civil Nature of Marriage?

Abstract

marriage and its legal consequences in British India. Syed Mahmood -the author of the judgment- is considered to have propounded that marriage under Islamic law is a civil contract. The holistic analysis conducted in the paper questions this attribution to Syed Mahmood and argues that he alluded to such notion for judiciously resolving the issue at litigation, i.e. maintainability of the suit for restitution of conjugal rights in case of non-payment of dower. It was not his objective to propound an absolute theory of universal application as to civil nature of marriage. The main contribution of Abdul Kadir v Salima was to facilitate the transplantation process of the suit for restitution of conjugal rights into Anglo-Muhammadan law and augment its religious sanctity by equating it with mutual rights of cohabitation of spouses under Islamic law. Additionally, the paper juxtaposes some of the main propositions of Abdul Kadir v Salima with Pakistani cases to appreciate the points of converge and divergence.