Ahmedabad : Reversing a family court order, the Gujarat High Court has held that a woman cannot be compelled to live with her husband and establish conjugal rights, despite a judicial order. The High Court also said that the first wife can refuse to live with her husband on the ground that “Muslim law allows polygamy, but has never encouraged it.”
The High Court, in a recent order, said, “Muslim law in India has compulsorily regarded polygamy as a tolerable institution, but did not encourage it, and the husband should in all circumstances consider the wife to be his partner to another woman. (consortium) has not provided any fundamental right to compel us to keep it.”
The High Court referred to the recent order of the Delhi High Court, which held that Uniform Civil Code should not be the only hope in the Constitution. A division bench of Justice JB Pardiwala and Justice Niral Mehta of the Gujarat High Court observed that the decision in a suit for restoration of marital rights does not depend solely on the authority of the husband, and the family court should also consider that Would it be unfair for her to force the wife to live with her husband?
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The bench made the observation while admitting a plea of a woman challenging the July 2021 order of a family court in Gujarat’s Banaskantha district. The family court had directed the woman to go back to her in-laws’ house and discharge her matrimonial obligations. The couple’s ‘Nikah’ took place on 25 May 2010 in Palanpur, Banaskantha and they had a son in July 2015.
According to the petition, the woman, who worked as a nurse in a government hospital, had left her in-laws’ house with her son in July 2017 after her in-laws forced her to move to Australia and take up a job there. The woman said that she did not like the idea and hence left her in-laws’ house along with the son.
The High Court referred to Order 21 Rule 32(1) of the Code of Civil Procedure and said, “No person may compel a woman or her wife to live together and establish marital right. If the wife refuses to live together then in such a case she cannot be compelled through a decree to establish conjugal rights.” According to the woman’s husband, she had left the house “without any valid grounds”. (agency)