The Allahabad High Court has held that a married Muslim man with living wife cannot remarry with another muslim women, if he cannot deal justly with the orphan.
The Division Bench comprising of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV while dealing with an appeal against Family Court's denial of Restitution of Conjugal Rights, emphasised on the mandate in the Holy Quran and observed that that bigamy is not sanctified unless a man can do justice to orphans, who in the present set of facts are the respondent and her children.
" 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 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."
The above was not the sole criteria to come to the conclusion as the Court also cited various Supreme Court precedents upholding Fundamental Rights (Collective and Individual) and deliberated upon how they should be embedded in the society.
Noting that in the garb of Personal Law, Citizens cannot be deprived of constitutional protections, the Court observed:
"The equality clause is not merely the equality before the law but embodies the concept of real and substantive equality which strikes at the inequalities arising on account of vast social and economic differentiation. Horizons of the constitutional law are expanding."
The Court dicussed in detail, cases such as A.K. Gopalan Vs. The State of Madras, 1950 Latest Caselaw 14 SC in which the Fundamental Rights translated into positive law in Part III of the Indian Constitution with the high purpose and spirit of the Preamble.
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, the Court said.
It reflected on Maneka Gandhi Vs. Union of India, 1978 Latest Caselaw 16 SC and Supreme Court held that the concept of right to life and personal liberty, granted under Article 21 of the Constitution could include "the right to live with dignity".
"Concept of equality enshrined in Article 14, concept of non discrimination on the ground of sex etc. enshrined in Article 15(2) and the concept of right to life and personal liberty which includes the right to live with dignity as enshrined in Article 21 read with preamble of the Constitution, are the foundation and the basic features of the Constitution. Breach of any of these, by any law or practice, shall render such law or practice to be unconstitutional."
Further deliberating on how horizons of the constitutional law are expanding, the Court brought into notice Chameli Singh Vs. State of U.P. wherein the Supreme Court expanded right to life and personal liberty under Article 21 of the Constitution by declaring that decent and civilized life is fundamental right which also includes food, wather and decent environment.
It also threw light on Francis Coralie Mullin Vs. The Administrator, Union Territory of Delhi & Ors, 1981 Latest Caselaw 12 SC wherein while interpreting Article 21 of the Constitution of India, the Supreme Court held that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
"The right to life or personal liberty under Article 21 of the Constitution enlarge its sweep to encompass human personality in its full blossom. It includes right to livelihood, better standard of living, hygienic conditions in the work place and leisure."
The Court also added to the list, Ghisalal Vs Dhapubai (Dead) by L.RS. and others. , 2011 Latest Caselaw 37 SC wherein the Supreme Court held that mandate of wife's consent for adoption and conferring independent right upon a female Hindu to adopt a child, Parliament sought to achieve one of the facets of the goal of equality enshrined in the Preamble and reflected in Article 14 read with Article 15 of the Constitution.
Importantly, the Court relied on Voluntary Health Association of Punjab Vs. Union of India and Others, 2016 Latest Caselaw 785 SC wherein the Supreme Court held that woman has to be regarded as an equal partner in the life of a man. A society that does not respect its women, cannot be treated to be civilized. Civilization of a country is known how it respects its women. It is the requisite of the present day that people are made aware that it is obligatory to treat the women with respect and dignity so that humanism in its conceptual essentiality remains alive.
In backdrop of the above, that Court ruled that in the absence of any cogent explanation for the second marriage or in the absence of any explanation to the first wife with respect to matters aforementioned, the action of the plaintiff-appellant would amount to cruelty to his first wife.
Therefore, it would be inequitable for the court to compel the first wife against her wishes to live with such a husband, i.e. the plaintiff-appellant, the Court added.
The Court went on to note 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 Court observed.
"If the husband, after taking a second wife against the wishes of the first, also wants the assistance of the Civil Court to compel the first to live with him, the Court will respect the sanctity of the second marriage, but 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, if it concludes, on a review of the evidence, that it will be inequitable to compel her to do so."
Even in the absence of satisfactory proof of the husband's 10 cruelty, the Court will not pass a decree for restitution in favour of the husband if, on the evidence, it feels that the circumstances are such that it will be unjust and inequitable to compel her to live with him, it added.
Founding the plaitiff-appellant guilty of showing cruelty to his first wife, as he remarried without her due knowledge, the Court opined that in such 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.
Doing otherwise would amount to breach of her fundamental rights guaranteed under Article 21 of the Constitution of India, the Court conlcuded and dismissed the appeal with the observation.
The appeal was filed by the husband under Section 19 of the Family Courts Act, 1984 seeking setting aside of the judgement and the decree passed by the Principal Judge, Family Court whereby the plaintiff’s suit for restoration of conjugal rights, has been dismissed.
CASE TITLE: Azizurrahman vs Hamidunnisha @ Sharifunnisha
CASE DETAILS: FIRST APPEAL No. - 700 of 2022
CORAM: Hon'ble Surya Prakash Kesarwani J. and Hon'ble Rajendra Kumar-IV, J.
Read Judgement @LatestLaws.com:
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