On “Muslim Law Permits Polygamy”, A High Court Ruling On Wife’s Rights

Overturning a family court’s order, the Gujarat High Court has said a woman cannot be forced to cohabit (live) with her husband and establish conjugal rights with him even by a court’s decree.

The high court also observed that the first wife may decline to live with her husband on the ground that the “Muslim law permits the polygamy, but has never encouraged it”.

“The Muslim law, as forced in India, has considered polygamy as an institution to be tolerated, but not encouraged, and has not conferred upon the husband any fundamental right to compel his wife to share his consortium with another woman in all circumstances,” it further observed in a recent order.

The high court cited the Delhi High Court’s recent order, which said the Uniform Civil Code (UCC) should not remain a mere hope in the Constitution.

The Gujarat High Court’s division bench of Justices JB Pardiwala and Niral Mehta said the decision in a suit for the restitution of conjugal rights does not depend entirely on the husband’s right, and the family court should also consider whether it would make it inequitable for it to compel the wife to live with her husband.

The bench said this while allowing a plea filed by a woman challenging the July 2021 order of a family court in Banaskantha district of Gujarat, which had directed her to go back to her matrimonial home and perform her marital obligation.

The couple’s ‘Nikah’ was performed on May 25, 2010 at Palanpur in Banaskantha and they had a son in July 2015.

As per the plea, the woman, a qualified nurse working at a civil hospital, took her son and left her husband and in-laws in July 2017, after they compelled her to migrate to Australia and take up a job there.

The woman in her plea said she was against the idea and hence, left her matrimonial home with her son.

The high court quoted order XXI rule 32(1) and (3) of the Civil Procedure Code (CPC) and said “no person can force a female or his wife to cohabit and establish conjugal rights. If the wife refuses to cohabit, in such a case, she cannot be forced by a decree in a suit to establish conjugal rights”.

As per the woman’s husband, she left home “without any lawful ground”.

When persuasion to bring her back failed, her husband moved the family court, which passed a decree for the restitution of conjugal rights in favour of the husband.

The high court observed that the family court arrived at the conclusion “based on conjecture that being a working woman, she could not come up with her household responsibilities and therefore, thought fit to walk out of her matrimonial home on a lame excuse of being harassed by her husband and other family members”.

“Our notions of law in that regard have to be altered in such a way as to bring them in conformity with the modern social conditions,” the high court observed.

“Nothing has been shown to us in the form of any rule or otherwise which compel the courts to always pass a decree in a suit for restitution of conjugal rights in favour of the husband,” it said.

If a court feels that the husband, who has filed such a suit, is himself unworthy or has some ulterior motive, it may refuse him assistance altogether, the bench said.

The high court questioned whether it would be right to allow such a suit in favour of a husband even when he has meanwhile married another woman while his first wife was away, simply “on the ground that a Muslim under his personal law can have several wives, at a time up to a maximum four”.

The high court said a wife may decline to live with her husband on the ground that the Muslim law permits the polygamy, but has never encouraged it.

The high court cited a Delhi High Court order of July 7, 2021 on the Uniform Civil Code, in which it observed that the UCC should not remain a mere hope in the Constitution.

While expressing regret over the conflicts in the society due to differences in various personal laws, the court observed that in modern Indian society, which is gradually becoming homogeneous, the traditional barriers of religion, community and caste are slowly dissipating.

“The youth of India belonging to various communities, tribes, castes or religions who solemnise their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce,” it said, quoting the order.