Imagine fleeing a home where you no longer feel safe. You gather the courage to walk away from the fear, the mistrust, the slow erosion of self. And just when you think you’ve reclaimed your freedom, the law comes knocking. Not to protect you, but to send you back.
In Pakistan, this isn’t fiction. It’s a legal reality.
The remedy of restitution of conjugal rights has long outlived its relevance. Rooted in archaic conceptions of marriage and imported into the Indian Subcontinent through British colonial rule, this provision now stands in direct conflict with fundamental constitutional rights and modern principles of gender justice.
Though framed in gender-neutral terms, RCR is overwhelmingly used by men. It allows one spouse, most often the husband, to legally compel the other to return to the marital home, regardless of his or her will, under the guise of restoring matrimonial obligations. It is used as a tool of harassment and control, reinforcing a patriarchal notion of marriage in which a woman is treated as property, someone who can be reclaimed and forced into physical proximity with her husband, regardless of her consent or bodily autonomy.
To understand how we got here, we must revisit the origins of RCR. The concept traces back to mediaeval Christian Europe, particularly Catholic traditions, where marriage was considered sacred and indissoluble. To uphold this belief, British courts developed RCR as a way to enforce the church’s ban on divorce. Under the legal doctrine of coverture, a woman lost her independent legal identity after marriage, and her husband gained authority over her person and property.
When the British colonised the Indian Subcontinent, they imported this remedy into the Indian legal system. However, its logic is fundamentally incompatible with Islamic law. In Islamic jurisprudence, marriage is neither a sacrament nor merely a civil contract. It is a solemn covenant grounded in mutual consent, respect, and reciprocal obligations. Unlike Christian canon law, Islam acknowledges that marriages can end and provides various avenues such as talaq, khula, and mubarat (mutual divorce).
More significantly, Islam acknowledges the individuality and legal personhood of women. A wife retains her legal personhood, control over her assets, and the freedom to manage her affairs. These principles sharply contradict the rationale behind RCR, which assumes a wife must obey and return regardless of why she left, reducing her to a passive participant in her marriage.
In reality, RCR is rarely about fixing a marriage. Husbands often file RCR suits for three reasons: (1) to avoid fulfilling marital obligations such as paying maintenance or dower, (2) to pressure a wife to abandon her legal claims, and (3) to delay court proceedings and financially burden her. The law becomes a strategy to paint the woman as unreasonable or disobedient, undermining her credibility and weakening her claims to dower (mehr) and financial support.
This misuse was directly addressed in the Supreme Court judgment, Mst. Tayyeba Ambareen v. Shafqat Ali Kiyani (2023 SCMR 246), where the Court held that RCR must not be used “to gratify the urges of male chauvinism.” The Court emphasised that such claims must be made “in good faith,” with the sincere aim of resolving marital discord through fulfilment of responsibilities, not as a tool to undermine a wife’s legal rights.
This misuse makes it clear: RCR is not about reconciliation. It is about control. It preserves an imbalance of power in which a woman’s choices, safety, and dignity are made secondary to the institution of marriage. Forcing a spouse to return to a hostile or unhappy home achieves nothing. It only deepens marital discord and trauma. A court decree cannot reunite a mentally and physically separated husband and wife. As the old proverb goes, you can bring a horse to water but you cannot make him drink. Legal coercion cannot revive emotional trust, safety, or intimacy, where these no longer exist.
A healthy marriage is built on mutual respect, shared goals, and above all, consent. It cannot be sustained through coercion. Maintaining a law that forces women back into homes they have chosen to leave is a disservice to justice and human dignity. The time has come to abolish the remedy of restitution of conjugal rights not only because it is ineffective, but because it violates the very freedoms that our Constitution is meant to protect.
Moreover, this coercive remedy blatantly violates multiple constitutional protections. First, it infringes upon Article 9, which safeguards the right to life and liberty. A woman’s right to liberty includes the ability to make decisions about her safety and personal well-being. Compelling her to return to a potentially unsafe environment undermines the State’s duty to protect and not endanger its citizens.
Second, it undermines Article 14, which guarantees the right to dignity and privacy. Legally threatening a woman to return to her husband undermines her autonomy and could subject her to emotional, psychological, or even physical abuse.
Third, RCR violates Article 15, which guarantees the right to freedom of movement and residence within Pakistan. When the law compels a woman to return to the marital home, it restricts her ability to decide where she lives and moves, effectively limiting her constitutional right to choose a place of safety and dignity. A woman who leaves a toxic marriage should not be forced by a court order to return to a location that endangers her well-being. Freedom of movement cannot be selectively applied— it must include the freedom to leave.
Article 8 of the Constitution is unequivocal: any law inconsistent with fundamental rights is void. The constitutional promise of equality, dignity, and freedom is not only contradicted but also directly opposed by RCR. Ironically, the very country that birthed this remedy, England, abolished it over five decades ago under the Matrimonial Proceedings and Property Act of 1970, recognising its incompatibility with the principles of liberty and mutual respect. Pakistan’s continued retention of this law reflects a regressive stance on gender justice and undermines the gains made in recognising women’s constitutional rights.
A healthy marriage is built on mutual respect, shared goals, and above all, consent. It cannot be sustained through coercion. Maintaining a law that forces women back into homes they have chosen to leave is a disservice to justice and human dignity. The time has come to abolish the remedy of restitution of conjugal rights not only because it is ineffective, but because it violates the very freedoms that our Constitution is meant to protect.
