Monday 17 January 2022
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Gujarat HC reads down Muslim husband’s polygamous rights

The Gujarat High Court has recently, in effect, read down the Shari’ah. In law, reading down of an existing law implies making a new interpretation of it to be followed as a precedent thereafter. The court observed that as per the Muslim personal law, as enforced in India, a husband has not been given a fundamental right to compel his wife to share him with another woman (husband’s other wives or otherwise) in all circumstances.

The bench of Justice JB Pardiwala and Justice Niral Mehta observed thus while holding that in a suit filed by the husband for restitution of conjugal rights, a woman cannot be forced to cohabit with her husband even by way of a court’s decree.

In this case, the court was dealing with the wife’s challenge to the decision of the Family court that had directed her to go back to her matrimonial home and perform conjugal obligations.

However, overturning the family court’s order, the court, referring to the object behind Order XXI Rule 32(1) and (3) CPC, held that no person could force a woman or his wife to cohabit and establish conjugal rights and if the wife refuses to cohabit, in such case, she could not be forced by a decree in a suit to establish conjugal rights.

Importantly, while dealing with this case, the bench also emphasised that Muslim law did not encourage polygamy as an institution but only tolerated the same and, therefore, the first wife of a Muslim husband could decline to live with her husband (who married another woman) on the ground that the Muslim law permitted polygamy but did not encourage it.

To explain it further, the court gave the following example:

“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 up to 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.”

Further, the Gujarat 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.

The Supreme Court had, earlier this year, agreed to hear a fresh challenge to the provision allowing restitution of conjugal rights under personal laws (Section 9 of the Hindu Marriage Act).

The Gujarat High Court was dealing with a PIL filed by Ojaswa Pathak challenging Section 9 of the Marriage Act, Section 22 of the Special Marriage Act and Rules 32 and 33 of Order XXI of the Code of Civil Procedure.

The petitioner, in its plea, had contended that the court-mandated restitution of conjugal rights amounted to a “coercive act” on the part of the state which violates one’s sexual and decisional autonomy, right to privacy and dignity, all of which come within the purview of right to and personal liberty under Article 21.

In August 2021, the Allahabad High Court had observed that the remedy of the writ of habeas corpus at the instance of a Husband, seeking to obtain possession of his wife is not available as a matter of course.

Dealing with the Husband’s plea seeking production of his wife, the Bench of Justice Dr Yogendra Kumar Srivastava observed thus:

“In view of the other remedies available for the purpose under criminal and civil law, issuance of a writ of habeas corpus at the behest of a husband to regain his wife may not be available as a matter of course and the power in this regard may be exercised only when a clear case is made out.”

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