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Muslim man incapable of fending for first wife, children can’t marry again: Allahabad High Court

The Allahabad High Court, citing the Qur'an, has stated that a man cannot go for a second marriage if he is not capable to foster his and children. The court said the Qur'an did not sanctify bigamy until a man could do justice to orphans.

The bench of Justices Surya Prakash Kesarwani and Rajendra Kumar, made this observation while dealing with an appeal filed by a man challenging a family court’s order dismissing his case for restitution of conjugal rights, on Tuesday.

The court further stated that a man could not get a civil court order compelling his first to live with him after having a second wife against her will.

Responding to a first appeal brought by a certain Azizurrahman, a division bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar stated that the religious command of Sura 4 Ayat 3 of the Qur'an was binding on all men. A Muslim man is allowed to wed up to four women of his choosing, but he may only wed one if he believes that he would not be able to treat others fairly. 

The high court stated that a husband had the legal right to take a second even while the first marriage is still going strong. However, if he does so and then asks the civil court for help to force the first wife to live with him against her will, she is entitled to ask whether the court, as a court of equity, ought to compel her to submit to cohabitation with such a husband.

 “Under the circumstances, if the first 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 the 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.

The facts of the case stated that the appellant-husband had entered into a second marriage without alerting her first and was suing a civil court for the restoration of her first wife's conjugal rights.

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