The High Court was dealing with the appeal filed under Section 19 of the Family Courts Act, 1984 challenging the judgment passed by the Principal Judge, Family Court, whereby the plaintiff’s suit for restoration of conjugal rights, has been dismissed.

In this case, The father of the respondent/wife has gifted his immovable property to the respondent and she is living with her old father who is stated to be more than 93 years old and is looking all his care.

The appellant/husband has contracted second marriage and suppressed the fact, but the fact of the second marriage and also that some children were born from the wedlock with the second wife, was admitted by own witnesses of the appellant.

The husband has admittedly neither told the wife either about his intention to contract second marriage nor explained the wife that he shall give equal love, affection and treatment to both wives.

The bench relied upon the case of A.K. Gopalan v. The State of Madras where the Supreme Court observed that “the people of India have in exercise of their sovereign will as expressed in the preamble, adopted the democratic ideals which assures the citizen the dignity of the individuals and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, because they have been re-tained by the people and made paramount to the delegated powers, which has been translated into positive law in Part III of the Indian Constitution, the high purpose and spirit of the Preamble, as well as the constitutional significance of a Declaration of Fundamental Rights, should be borne in mind in construing a provision of Part III of the Indian Constitution. This declaration is the greatest charter of liberty of which the people of this country may well be proud. The foundation of this republic have been led on the bedrock of justice.”

High Court stated that as per mandate of the Holy Quran as noted above all Muslims men have to deal justly with the orphans. A married Muslim man having his wife alive cannot marry with another muslim women, if he cannot deal justly with the orphan. A mandate has been given that in such circumstances a Muslim man has to prevent himself to perform second marriage, if he is not capable of fostering his wife and children.

The bench further stated that The religious mandate of Sura 4 Ayat 3 is binding on all muslim men which specifically mandates all Mulim men to deal justly with orphans and then they can marry women of their choice two or three or four but if a Muslim man fears that he will not be able to deal justly with them then only one. If a muslim man is not capable of fostering his wife and children then as per above mandate of Holy Quran, he cannot marry the other woman.

High Court opined that A Muslim husband 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 on pain of severe penalties, she is entitled to raise the question whether the court, as a court of equity, ought to compel her to submit to co-habitation with such a husband. In that case the circumstances in which his second marriage took place, are relevant and material in deciding whether his conduct in taking a second wife was in itself an act of cruelty to the first.

The bench stated that “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 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.”

In view of the above, the High Court rejected the appeal.