Abdul Kadir v Salima
Rule established
Marriage among Muhammadans is a purely civil contract and not a sacrament, and the rights and obligations it creates arise immediately on the contract being made. Non-payment of prompt dower does not bar the husband's suit for restitution of conjugal rights, but because restitution is an equitable relief akin to specific performance the decree is made conditional on payment of prompt dower, and the wife may lawfully refuse cohabitation until prompt dower is paid.
Facts
- The parties were married and lived together for about three months. The wife then went to her father's house and was not permitted to return to her husband. The husband sued for restitution of conjugal rights, impleading her father. The wife resisted on the grounds of cruelty and non-payment of dower, and cross-petitioned for divorce. Her allegations of cruelty and her claim for divorce both failed on the evidence, so the case came to turn on a single question of law: what is the effect of unpaid prompt dower on the husband's suit?
Issue
- Is Muslim marriage a civil contract or a sacrament, and does non-payment of prompt dower bar the husband's suit for restitution of conjugal rights?
Held
- Marriage among Muhammadans is a purely civil contract. The obligations it creates take effect at once and are not conditional upon payment of dower, so the wife's plea did not destroy the husband's cause of action. However, a suit for restitution of conjugal rights is an equitable proceeding analogous to specific performance, and a court of equity will not compel performance by one party while the other withholds what is due. The decree for restitution was therefore made conditional on payment of prompt dower. Mahmood J also observed that dower is a sum promised in consideration of the marriage, and that the law confers it on the wife even where no amount has been expressly fixed.
Ratio Decidendi
Two distinct propositions, which should be kept separate: 1. Nature of marriage. The nikah is a civil contract. Its incidents are determined by the terms of the contract and by the personal law, not by any sacramental theory. This is the proposition for which the case is universally cited. 2. Effect of unpaid prompt dower. Unpaid prompt dower is not a bar to the suit, but it is a bar to an unconditional decree. The court moulds the relief, conditioning enforcement of the husband's right to consortium on payment of the wife's prompt dower. The wife's refusal to cohabit until prompt dower is paid is lawful and does not constitute disobedience.
How to use it in an exam
- The leading authority whenever the question asks whether Muslim marriage is a contract or a sacrament. Quote the phrase "purely civil contract" and attribute it to Mahmood J.
- Note the qualification that later judges have entered. Sulaiman CJ in Anis Begam v Malik Muhammad Istafa Wali Khan (All India Reporter 1933 Allahabad 634) expressly qualified Mahmood J's characterisation, pointing out that a high degree of sanctity attaches to the marriage and that it is not a contract in every respect. The Gauhati High Court took the same view in Jiauddin Ahmed v Anwara Begum. A strong answer states the Abdul Kadir proposition and then records the qualification.
- Useful in dower questions for the distinction between the existence of the husband's right and the enforceability of it.
- Do not cite this case for the presumption that dower is prompt where the deed is silent. That is a separate proposition resting on other authority.
- > [!warning] Reading the case accurately
- > Abdul Kadir is often reduced in student answers to the single line "Muslim marriage is a civil contract". That is the famous holding, but the case was actually decided on the equitable conditioning of a restitution decree. If a problem question turns on unpaid prompt dower and the wife's refusal to cohabit, the operative part of the judgment is the second proposition, not the first.
Source
Source: (1886) ILR 8 All 149 (FB); 6 Ind Dec (NS) ...; judgment dated 21 January 1886. Citation, court, date and the identity of Mahmood J as author of the leading judgment verified on audit of 12 August 2026. The complete Full Bench composition could not be confirmed and is therefore stated conservatively.
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.