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Synopsis

The Allahabad High Court recently observed that the Holy Quran mandates that a married Muslim man has to prevent himself from performing second marriage if he is not capable of fostering his first wife and children.

"The religious mandate of Sura 4 Ayat 3 is binding on all Muslim men which specifically mandates all Muslim men to deal justly with orphans and then they can marry two or three or four women of their choice but if a Muslim man fears that he will not be able to deal justly with them then only one. If a Muslim man is not capable of fostering his wife and children then as per the above mandate of the Holy Quran, he cannot marry the other woman", observed the division bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV.

As per the court order, Sura 4 Ayat 3 of the Holy Quran which throws light on second marriage by a Muslim says:

"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." (sic)

The court observed thus while dismissing a plea moved by one Muslim man challenging the family court's order dismissing his suit for restoration of conjugal rights in connection with his first wife. 

The petitioner's first wife had refused to live with him as he married another woman without informing her and later asked her to share his consortium with the other woman.

The court observed that it was an admitted fact that when the petitioner contracted the second marriage he suppressed this fact from his first wife and also there was no assurance given to the first wife that he would give equal love, affection and treatment to both the wives. The court held that such conduct of the petitioner would amount to cruelty to his first wife​​​​​.

Further, the court said that a Muslim husband has the legal right to take a second wife even while the first marriage subsists, but if he does so, and then seeks the assistance of the Civil Court to compel the first wife to live with him against her wishes on pain of severe penalties, she is entitled to raise the question whether the court, as a court of equity, ought to compel her to submit to co-habitation with such a husband".

Accordingly, Court held that in that case the circumstances in which his second marriage took place, are relevant and material in deciding whether his conduct in taking a second wife was in itself an act of cruelty to the first.

"In other words, if the husband, after taking a second wife against the wishes of the first, also wants the assistance of the Civil Court to compel the first to live with him, the Court will respect the sanctity of the second marriage, but it will not compel the first wife, against her wishes, to live with the husband under the altered circumstances and share his consortium with another woman, if it concludes, on a review of the evidence, that it will be inequitable to compel her to do so", stated the court. 

In view of the same, stressing that the court will not pass a decree for restitution in favour of the husband if, on the evidence, it feels that the circumstances are such that it will be unjust and inequitable to compel the wife to live with him, the division bench dismissed the appeal moved by the Muslim man. 

"When the plaintiff-appellant has contracted the second marriage suppressing this fact from his first wife, then such a conduct of the plaintiff-appellant amounts to cruelty to his first wife. Under the circumstances, if the first wife does not wish to live with her husband-plaintiff appellant, then she cannot be compelled to go with him in a suit filed by him for restitution of conjugal rights," observed the court. 

Case Title: Azizurrahman v. Hamidunnisha @ Sharifunnisha