Muslim man cannot seek decree to compel first wife to live with him: HC

Prayagraj: The Allahabad High Court has held that a Muslim man who has married for the second time against the wishes of his first wife cannot seek a decree from a civil court to compel the first wife to live with him.

A bench of justices Surya Prakash Kesarwani and Rajendra Kumar passed the order recently on an appeal filed under the Family Courts Act challenging the judgment of the Principal Judge, Family Court, who had dismissed the appellant’s plea for restitution of conjugal rights with his first wife.

The court said when the appellant entered the second marriage suppressing this fact from his first wife, it amounted to cruelty to her.

The bench stated that the religious mandate of Sura 4 Ayat 3 of the holy Quran is binding on Muslim men. It specifically mandates that a Muslim man can marry up to four women of their choice, but if a Muslim man fears that he will not be able to deal justly with them, then he can only marry one.

If a Muslim man is not capable of fostering his wife and children, then as per the mandate of the Quran, he cannot marry the other woman, the high court said.

It held that a Muslim man 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 of whether the court, as a court of equity, ought to compel her to submit to co-habitation with such a husband.

The bench stated, “When the appellant has contracted the second marriage suppressing this fact from his first wife, then such a conduct of the plaintiff-appellant amounts to cruelty to his first wife.

“Under the circumstances, 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 the grant of 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 of India, the court said.