Cannot compel first wife to have conjugal relationship with husband after his second marriage: Allahabad HC

Citing the Holy Quran, the Allahabad High Court said the Muslim men who are incapable of providing for children and wife cannot remarry. It has dismissed a Muslim man's plea seeking co-habitation with first wife after his second marriage.

Allahabad: In a landmark judgement, the Allahabad High Court refused to pass orders in favour of a Muslim Man who wanted resumption of conjugal relationship with his first wife after he had taken a second wife without the knowledge of first wife. The Court held that the Holy Quran does not mandate a man to marry twice if he is not capable of properly fostering his children and wife.

The High Court bench comprising Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV quoted the Sura 4 Ayat 3 of the Holy Quran and reiterated that bigamy is sanctified only to those men who are capable of taking care of the children and orphans.

The Court said 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 and added, "it feels that the circumstances are such that it will be unjust and inequitable to compel her to live with him." "If the contention of the husband for grant of decree of conjugal rights is accepted, then from point of view of the wife, it would amount to breach of her fundamental rights guaranteed under Article 21 of the Constitution of India," the Court said.

Hamidunnisha alias Shafikunnisha was marred to Azizur Rahman on May 12, 1999. Hamidunnisha is the lone heir to nonagenarian father. She had four children from the marriage. Meanwhile, her husband without informing her remarried and fathered two children from that marriage. Hamidunnisha received a property as gift-deed from her father who is now 93 and is under her care and she had refused to live with him.

The Court held that Azizu Rahman marrying another woman without the knowledge of the first wife amounted to cruelty to Hamidunnisha. "Under the circumstances, 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," it ruled upholding the lower court order.