Quran Doesn't Sanction Second Marriage If Husband Can't Foster First Wife, Children- Allahabad High Court

The Division Bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV observed, "The religious mandate of Sura 4 Ayat 3 is binding on all muslim men which specifically mandates all Mulim men to deal justly with orphans and then they can marry women of their choice two or three or four 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 above mandate of Holy Quran, he cannot marry the other woman."

The Court referred to Sura 4 Ayat 3 of the Holy Quran which states –

"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."

The Court was hearing a plea of the Muslim husband assailing the order of the Family Court which had dismissed his application for restitution of conjugal rights with his first wife.

The wife had refused to live with the Appellant-Husband since he contracted second marriage and out of the said wedlock some children were also born.

Counsel Mahendra Pratap Yadav appeared for the Appellant before the Court.

The Court noted that the Plaintiff-Appellant had contracted second marriage and had suppressed the fact. Further, the Court also noted that the Plaintiff-Appellant had admittedly neither told the Defendant-Wife about his intention to contract second marriage nor explained the Defendant-Wife that he shall give equal love, affection and treatment to both the wives.

Further, the Bench placed reliance on Dilbar Habib Siddiqui Vs. State of U.P. and Others 2010 (69) ACC 997, where the Allahabad High Court had observed –

"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."

Thus, the Court observed –

"In view of mandate in the Holy Quran it is amply clear that bigamy is not sanctified unless a man can do justice to orphans, who in the present set of facts are the respondent and her children. As per mandate of the Holy Quran as noted above all Muslims men have to deal justly with the orphans. A married Muslim man having his wife alive cannot marry with another muslim women, if he cannot deal justly with the orphan."

The Court also held that in the absence of any cogent explanation for the second marriage or in the absence of any explanation to the first wife with respect to matters aforementioned, the action of the Plaintiff-Appellant would amount to cruelty to his first wife. Therefore, it would be inequitable for the court to compel the first wife against her wishes to live with such a husband.

The Bench held, "A Muslim husband has a 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."

"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," the Court further held.

The Court observed that when the Plaintiff-Husband contracted the second marriage suppressing this fact from his first wife, then such a conduct would amount 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," the Court held.

Accordingly, the Court dismissed the appeal.

Cause Title – Azizurrahman v. Hamidunnisha @ Sharifunnisha

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