AFR

Court No. - 03

Case :- FIRST APPEAL No. - 700 of 2022

Appellant :- Azizurrahman

Respondent :- Hamidunnisha @ Sharifunnisha

Counsel for Appellant :- Mahendra Pratap Yadav

Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Rajendra Kumar-IV,J.

(Per: Surya Prakash Kesarwani, J.)

1. 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

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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.

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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. Th