Setting aside a Family Court’s order, Gujarat High Court noted that a woman cannot be forced to cohabit or establish conjugal rights with her husband even after the court directions.
The High Court bench also noted 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 division bench comprising Justice JB Pardiwala and Justice Niral Mehta noted, “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.”
The bench also referred to the recent order of the Delhi High Court which stated that the Uniform Civil Code (UCC) should not remain a mere hope in the Constitution.
The division bench observed that 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 allowed the plea filed by a woman challenging July 2021 Family Court order. A family court in the Banaskantha district of Gujarat had directed the wife to go to her matrimonial home and perform her marital obligations.
The Nikah of the petitioner and the respondent took place on May 25, 2010 and they had a son in 2015. The husband had alleged that the wife left the house without any lawful ground.
As per the petition, the woman left her matrimonial house along with her son in 2017 after her in-laws asked her to move to Australia and get a job there. The woman is a qualified nurse in a civil hospital.
The High Court bench referred to the order XXI rule 32(1) and (3) of the Civil Procedure Code (CPC), saying “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”.
When the efforts to bring her back home failed, the husband moved Family Court which announced the order in favour of the husband. The court passed a decree of restitution of conjugal rights.
The court noted that the Family court’s order is 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. 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,” the court said.
The bench went on to add that 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 High Court bench 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 court noted that the wife may deny living with the husband on the ground that Muslim laws allow polygamy, but has never encouraged it.
The court expressed regret over the differences in personal laws which ultimately lead to conflicts in society. In modern Indian society, which is gradually becoming homogeneous, the traditional barriers of religion, community and caste are slowly dissipating, the bench added.
“The youth of India belonging to various communities, tribes, castes or religions who solemnize 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,” the High Court said.