Thursday, December 30, 2021

Muslim Husband Has No Fundamental Right To Compel Wife To Share His Consortium With Another Woman: Gujarat High Court

Overturning the family court's order, the Court, referring to the obje
ct behind Order XXI Rule 32(1) and (3) CPC, held that no person can force a female or his wife to cohabit and establish conjugal rights and if the wife refuses to cohabit, in such case, she cannot be forced by a decree in a suit to establish conjugal rights.
"Take a case wherein the wife leaves her matrimonial home on account of matrimonial disputes and in the meantime, the husband marries for the second time and brings home a second wife and simultaneously institutes a suit for restitution of conjugal rights against his first wife, still whether the Court would be justified in passing a decree of restitution of conjugal rights on the ground that a Muslim under his personal law can have several wives at a time upto a maximum four. In such circumstances, 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 High Court also referred to an order of the Delhi High Court (dated July 7, 2021), wherein it was observed that a uniform civil code (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 homogenous, the traditional barriers of religion, community and caste are slowly dissipating. 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 Gujarat High Court observed as it referred to Delhi HC's order.

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