First Wife Not Consenting To Husband's Second Marriage Not A Relevant Factor In Protection Plea Of Muslim Couple: P&H High Court

The Bench of Justice Alka Sarin was hearing the plea of a Muslim Couple who solemnized their marriage against the wishes of respondent Nos.4 to 7 who are the relatives of woman and alleged that they apprehend danger to their life at the hands of respondent Nos.4 to 7.

Interestingly, in their plea for granting protection, the first wife of Man also appeared through her Counsel and it was contended by her that as per Muslim law the consent of the first wife is necessary for performing a second marriage.

Court's observations 

The Court noted that the petitioner No.2 (Muslim Woman) being of over 18 years of age was competent to get married as per Muslim law to Petitioner No.1 (Muslim Man) who was stated to be more than 23 years of age.

Thus, the Court concluded that both the petitioners "are of marriageable age as envisaged by Muslim law."

Regarding the alleged illegality of the marriage of the petitioners having been solemnized without the consent of the first wife, the Court said that it was not a relevant factor to be considered in the instant proceeding, which was only regarding providing of protection to the petitioners.

In this backdrop, the Court said,

"The issue in hand is not the validity of the marriage but the fact is that the petitioners are seeking protection of life and liberty as envisaged under Article 21 of the Constitution of India. Article 21 of the Constitution of India provides for protection of life and personal liberty and further lays down that no person shall be deprived of his life and personal liberty except as per the procedure established by law."

Granting them protection, the Court said,

"The Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners have got married against the wishes of their family members they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India."

Thus, the petition was disposed of with a direction to the Superintendent of Police, Nuh, Haryana to decide the representation of the petitioners dated 23.11.2020 and take necessary action as per law.

Case Title - Jakar & Anr. v. State of Haryana & Ors. [CRWP. No.9956 of 2020 (O&M)]

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