IMPORTANT POINT
Muslim husband has legal right to take a second wife even while first marriage subsists but if first wife 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.

JUDGMENT

Surya Prakash Kesarwani, J.—Heard learned counsel for the plaintiff appellant/husband.

2. This first appeal under Section 19 of the Family Courts Act, 1984 has been filed praying to set aside the judgment dated 04.08.2022 and the decree dated 12.08.2022 in Matrimonial Case No.188 of 2015 (Azizurrahman vs. Hamidunnisha @ Sharifunnisha) passed by the Principal Judge, Family Court, Sant Kabir Nagar whereby the plaintiff’s suit for restoration of conjugal rights, has been dismissed.

3. Briefly stated facts of the present case are that the defendant-respondent/ wife was married with the plaintiff-appellant/ husband on 12.05.1999. The defendant-respondent has only one sister and no brother. The other sister had died. Thus, the defendant-respondent is the only surviving issue of her father. From the wedlock of the plaintiff-appellant and the defendant-respondent, four children were born, out of which one has died and thus, two sons and one daughter remain surviving children of the plaintiff-appellant and defendant respondent. The father of the defendant-respondent has gifted his immovable property to the defendant-respondent and she is living with her old father who is stated to be more then 93 years old and is looking all his care. The plaintiff-appellant has contracted second marriage and suppressed the fact, but the fact of second marriage and also that some children were born from the wedlock with the second wife, was admitted by own witnesses of the plaintiff-appellant. The plaintiff-appellant/husband has admittedly neither told the defendant-respondent/wife either about his intention to contract second marriage nor explained the defendant-respondent that he shall give equal love, affection and treatment to both the wives. Briefly, on these facts the impugned judgement has been passed which has been challenged by the plaintiff appellant-husband.

4. We have carefully considered the submissions of the appellant and perused the appeal.

Discussion and Findings

5. Sura 4 Ayat 3 of the Holy Quran throws light on second marriage by a Muslim, which is reproduced below:—

“If ye fear that ye shall not

Be able to deal justly

With the orphans,

Marry women of your choice,

Two, or three, or four;

But if ye fear that ye shall not

Be able to do justly (with them),

Then only one, or (a captive)

That your right hands posses.

That will be more suitable,

To prevent you

From doing injustice.”

6. In the case of Dilbar Habib Siddiqui Vs. State of U.P. and Others 2010 (69) ACC 997 a Division Bench of this Court held in paragraph 8 as under:—

“Thus for a valid muslim marriage both the spouses have to be muslim. In the present writ petition this condition is not satisfied as the writ petition lacks credible and accountable material in this respect on which reliance can be placed.

Coming to another limb of argument raised by counsel for the petitioner that a muslim man is entitled to marry four time, we once again revert back to recognised treatises. We find that Sura 4 Ayat 3 of The Holy Quran provides for giving due care and provisions for a Muslim women. The said Ayat, as is referred to in the treatise by I.Mulla, is referred to below:—

“(vi) Number of wives- If ye fear that ye shall not be able to deal justly with the orphans ( orphan wives and their property); marry woman of your choice, two or three or four; But if you fear that ye shall not be able to deal justly (with them), then only one...........that would be more suitable to prevent you from doing injustice.”

From the perusal of above Ayats it is abundantly clear that bigamy is not sanctified unless a man can do justice to orphans. The said Ayat mandates all Muslims men to ‘deal justly with orphans and then they can marry women of their choice two or three or four but if they fear that they will not be able to deal justly with them then only one. We are of the view, that such a religious mandate has been given to all the Muslims for a greater social purpose. If a Muslim man is not