The Allahabad High Court has dismissed a petition filed by a Muslim man for restitution of conjugal rights, saying that if the first wife does not wish to live with her husband, then she cannot be compelled to go with him in a suit filed by him for restitution of conjugal rights. If the contention of the husband for grant of decree of conjugal rights is accepted, then from the point of view of the wife, it would amount to breach of her fundamental rights guaranteed under Article 21 of the Constitution of India.
The Division Bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV passed this order, while hearing a petition filed by one Azizurrahman.
The first appeal under Section 19 of the Family Courts Act, 1984 has been filed praying to set aside the judgment dated 04.08.2022 and the decree dated 12.08.2022 in Matrimonial Case passed by the Principal Judge, Family Court, Sant Kabir Nagar, whereby the plaintiff’s suit for restitution of conjugal rights has been dismissed.
The facts of the case are that the respondent/ wife got married to the appellant/ husband on 12.05.1999. The respondent has only one sister and no brother. The other sister had died.
Thus, the respondent is the only surviving issue of her father. From the wedlock of the appellant and the respondent, four children were born, out of which one has died and thus, two sons and one daughter remain surviving children of the appellant and respondent.
The father of the respondent has gifted his immovable property to the respondent and she is living with her old father, who is stated to be more than 93, and is looking after him.
The appellant has contracted second marriage and suppressed the fact, but the fact of second marriage and also that some children were born from the wedlock with the second wife, was admitted by own witnesses of the appellant.
The appellant/ husband has admittedly neither told the respondent/ wife either about his intention to contract a second marriage nor explained to the respondent that he shall give equal love, affection and treatment to both the wives.
Briefly, on these facts the impugned judgement has been passed which has been challenged by the appellant-husband.
The Court noted, “In view of mandate in the Holy Quran it is amply clear that bigamy is not sanctified unless a man can do justice to orphans, who in the present set of facts are the respondent and her children.
“As per mandate of the Holy Quran as noted above, all Muslim men have to deal justly with the orphans. A married Muslim man having his wife alive cannot marry another Muslim woman, if he cannot deal justly with the orphan. A mandate has been given that in such circumstances, a Muslim man has to prevent himself to perform second marriage, if he is not capable of fostering his wife and children.
The religious mandate of Sura 4 Ayat 3 is binding on all Muslim men, which specifically mandates all Muslim men to deal justly with orphans and then they can marry women of their choice 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.
If a Muslim man is not capable of fostering his wife and children then as per above mandate of Holy Quran, he cannot marry the other woman.
The Court said, Thus, in the absence of any cogent explanation for the second marriage or in the absence of any explanation to the first wife with respect to matters aforementioned, the action of the appellant 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, i.e the appellant.
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 on pain of severe penalties, she is entitled to raise the question whether the court, as a court of equity, ought to compel her to submit to co-habitation with such a husband.
In that case, the circumstances in which his second marriage took place, are relevant and material 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.
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 the evidence, it feels that the circumstances are such that it will be unjust and inequitable to compel her to live with him.
“When the appellant has contracted the second marriage suppressing this fact from his first wife, then such a conduct of the appellant amounts to cruelty to his first wife.
Under the circumstances, if the first wife does not wish to live with her husband-plaintiff appellant, then she cannot be compelled to go with him in a suit filed by him for restitution of conjugal rights. If the contention of the appellant/ husband for grant of decree of conjugal rights is accepted, then from the point of view of the respondent/wife, it would amount to breach of her fundamental rights guaranteed under Article 21 of the Constitution of India.
For all the reasons stated above, the appeal is totally frivolous and deserves to be dismissed at the admission stage”, the Court observed and dismissed the appeal.