No fundamental right of Islamic husband to compel wife to share consortium with another woman in all situations
Striking down a family court's order, the Gujarat High Court has said a woman cannot be forced to cohabit with her husband and establish conjugal rights with him even by a court's decree.
The High Court also observed that 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 Gujarat HC's division bench of Justices JB Pardiwala and Niral Mehta said the decision in a suit for the restitution of conjugal rights does not depend entirely on the husband's right, and the family court should also consider whether it would make it inequitable for it to compel the wife to live with her husband.
The bench said this while allowing a plea filed by a woman challenging the July 2021 order of a family court in Banaskantha district of Gujarat, which had directed her to go back to her matrimonial home and perform her marital obligation.
The couple's 'Nikah' was performed on May 25, 2010 at Palanpur in Banaskantha and they had a son in July 2015.
As per the plea, the woman, a qualified nurse working at a civil hospital, took her son and left her husband and in-laws in July 2017, after they compelled her to migrate to Australia and take up a job there. The woman in her plea said she was against the idea and hence, left her matrimonial home with her son.
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) a(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 suit to establish conjugal rights.
The high court reversed the family court's decision and held 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.
