India: Overturning a family court’s order, the Gujarat High Court has said a woman cannot be forced to cohabit (live) 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 Muslim law, as forced in India, has considered polygamy as an institution to be tolerated, but not encouraged, and has not conferred upon the husband any fundamental right to compel his wife to share his consortium with another woman in all circumstances,” it further observed in a recent order.
The high court cited the Delhi High Court’s recent order, which said the Uniform Civil Code (UCC) should not remain a mere hope in the Constitution.
The Gujarat High Court’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.
The high court quoted order XXI rule 32(1) and (3) of the Civil Procedure Code (CPC) and said “no person can force a female or his wife to cohabit and establish conjugal rights. If the wife refuses to cohabit, in such a case, she cannot be forced by a decree in a suit to establish conjugal rights”.
As per the woman’s husband, she left home “without any lawful ground”.
When persuasion to bring her back failed, her husband moved the family court, which passed a decree for the restitution of conjugal rights in favour of the husband.