Can't Compel Wife To Live With Muslim Husband Who Has Married Another Woman If It Isn't 'Equitable': Allahabad High Court

The Allahabad High Court has observed that the Court should not compel a wife, against her wishes, to live with her Muslim husband (who has married again) and share his consortium with another woman, if the court is of the opinion that it would be 'inequitable' to compel her to do so.

The bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV observed thus while dismissing an appeal filed by a Muslim man challenging the family court's order dismissing his suit for restoration of conjugal rights in connection with his first wife (respondent).

The Court opined that though a Muslim husband has the legal right to take a second wife even while the first marriage subsists, however, 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, then, 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.

"...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 Bench further remarked. (emphasis supplied)

The case in brief

It was the admitted case of the plaintiff-appellant/husband that he contracted a second marriage and did not disclose this fact to his first wife (defendant/respondent), however, he wished to live with both of his wives and since the first wife refused to live with him and share his consortium with another woman, he filed a plea seeking restoration of conjugal rights. Having heard both parties, the Family Court dismissed the husband's plea. Challenging this order, he moved to the High Court by way of filing the instant plea.

High court's observations

Dismissing his appeal, the High Court specifically observed that when the plaintiff-appellant contracted the second marriage suppressing this fact from his first wife, then such conduct of the plaintiff-appellant amounts to cruelty to his first wife.

However, the Court did add 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 the evidence, it feels that the circumstances are such that it will be unjust and inequitable to compel her to live with him.

Under these circumstances, the Court categorically held that 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.

The Court linked these observations with the concept of equality enshrined in Article 14, the concept of nondiscrimination on the ground of sex etc. enshrined in Article 15(2) and the concept of the right to life and personal liberty which includes the right to live with dignity as enshrined in Article 21.

Significantly, stressing that the civilization of a country is known for how it respects its women, the Court remarked thus:

"A society that does not respect its women, cannot be treated to be civilized...It is the requisite of the present day that people are made aware that it is obligatory to treat women with respect and dignity so that humanism in its conceptual essentiality remains alive."

As reported by Live Law earlier, in this very case, the Court has also observed that a Muslim man has to prevent himself to perform a second marriage if he is not capable of fostering his wife and children. Stressing that as per the mandate of the Holy Quran, bigamy is not sanctified unless a man can do justice to orphans, the Court made the following observations:

"The religious mandate of Sura 4 Ayat 3 (of Quran) 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 the above mandate of the Holy Quran, he cannot marry the other woman."

Complete report here: Muslim Man Can't Marry Another Woman As Per Quran If He Isn't Capable Of Fostering First Wife, Children: Allahabad High Court

Case title - Azizurrahman v. Hamidunnisha @ Sharifunnisha [FIRST APPEAL No. - 700 of 2022]

Case Citation: 2022 LiveLaw (AB) 463 [Another angle here]

Click Here To Read/Download Order