The Allahabad High Court, while refusing to compel a Muslim woman to live with her husband who had married a second time, observed that if a Muslim man cannot take care of his wife and children, then the Quran does not allow him to marry a second time. The Court termed it as cruelty by the husband to the first wife.
The Court dismissed the petition, holding that if the first wife does not wish to live with her husband, she cannot be compelled to go with him, while hearing a suit filed by him for the restitution of conjugal rights. If the contention of the husband for the grant of the decree of conjugal rights is accepted, then from the point of view of the wife, it would amount to a breach of her fundamental rights guaranteed under Article 21 of the Constitution.
The Division Bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV passed this order while hearing a petition filed by Azizurrahman. The appeal under Section 19 of the Family Courts Act, 1984, was filed, praying to set aside the judgment dated August 4, 2022, and the decree dated August 12, 2022, in a matrimonial case passed by the Principal Judge, Family Court, Sant Kabir Nagar, whereby his suit for restitution of conjugal rights was dismissed.
The facts of the case are that the wife was married to the husband on May 12, 1999. The wife has only one sister and no brother. The other sister had died. Thus, the wife is the only surviving child of her father. From the wedlock of the husband and the wife, four children were born, out of which one died and two sons and one daughter remain. The father of the wife had gifted his immovable property to her and she is now living with him and taking care of him as he is old.
The husband contracted a second marriage, but did not disclose it. Moreover, children were also born from that wedlock. The husband neither told the first wife about his intention to enter into a second marriage nor explained to her that he shall give equal love, affection and treatment to both wives.
Surah 4 Ayat 3 of the Quran throws light on second marriage by a Muslim man. It says: “If you fear that you might not treat the orphans justly, then marry the women that seem good to you: two, or three, or four. If you fear that you will not be able to treat them justly, then marry (only) one, or marry from among those whom your right hands possess. This will make it more likely that you will avoid injustice”.
The Court noted that in view of the mandate in the Quran, it is amply clear that bigamy is not sanctified unless a man can do justice to orphans, who in the present case are the woman and her children. As per the mandate of the Quran, all Muslim men have to deal justly with orphans. A married Muslim man whose wife is alive cannot marry another Muslim woman if he cannot deal justly with the orphans. A mandate has been given that in such circumstances, a Muslim man has to prevent himself from a second marriage, if he is not capable of fostering his wife and children.
The religious mandate of Surah 4 Ayat 3 in the Quran is binding on all Muslim men and specifically commands all Muslim men to deal justly with orphans, and then they can marry women of their choice, whether two or three or four, but if a Muslim man fears that he will not be able to deal justly with them, then only one is allowed. If a Muslim man is not capable of fostering his wife and children then as per the mandate of the Quran, he cannot marry other women.
The Court said that thus, in the absence of any cogent explanation for the second marriage or in the absence of any explanation given to the first wife, with respect to these matters, the action of the husband would amount to cruelty to his first wife. Therefore, it would be inequitable for the Court to compel the first wife against her wishes to live with such a husband.
A Muslim husband has the legal right to take a second wife even while the first marriage subsists, but if he does so, and then seeks the assistance of the civil court to compel the first wife to live with him against her wishes, she is entitled to raise the question whether the court, as a court of equity, ought to compel her to submit to cohabitation with such a husband.
The Court further said in that case, the circumstances in which his second marriage took place are relevant in deciding whether his conduct in taking a second wife was in itself an act of cruelty to the first.
In other words, if the husband, after taking a second wife against the wishes of the first, also wants the assistance of the civil court to compel the first to live with him, the Court will respect the sanctity of the second marriage, but it will not compel the first wife, against her wishes, to live with the husband under the altered circumstances and share his consortium with another woman, if it concludes, on a review of the evidence, that it will be inequitable to compel her to do so.
The Court stated that even in the absence of satisfactory proof of the husband’s cruelty, the Court will not pass a decree for restitution in favour of the husband if, on evidence, it feels that the circumstances are such that it will be unjust and inequitable to compel her to live with him.
The court observed that when the husband has contracted the second marriage while suppressing it from his first wife, then such a conduct of the husband amounts to cruelty towards his first wife. Under the circumstances, if the first wife does not wish to live with her husband, she cannot be compelled to go with him in a suit filed by him for the restitution of conjugal rights. If the contention of the husband for grant of the decree of conjugal rights is accepted, then from the point of view of the first wife, it would amount to breach of her fundamental rights as guaranteed under Article 21 of the Constitution.
The Supreme Court in AK Gopalan vs The State of Madras AIR 1950 SC 27 observed that the people of India have, in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideals which assure the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his/her personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, because they have been retained by the people and made paramount to the delegated powers which have been translated into positive law in Part III of the Constitution, the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights. This should be borne in mind in construing a provision of Part III of the Constitution. This declaration is the greatest charter of liberty of which the people of this country may well be proud of.
–By Adarsh Kumar and India Legal Bureau