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The Gujarat High Court has recently observed that the Muslim law, as enforced 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.

The bench of Justice J. B. Pardiwala and Justice Niral Mehta observed so while examining the scope of the family court's discretion in a suit for restitution of conjugal rights filed by a Muslim husband. The Bench said that not in all circumstances Family Court is bound to pass a decree in favor of the husband.

Court said that a marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract. Therefore, it concluded, 

"In a suit for restitution of conjugal rights by a Muslim husband against his wife, if the Court after a review of the evidence feels that the circumstances reveal that the husband has been guilty of unnecessary harassment caused to his wife or of such conduct as to make it inequitable for the Court to compel his wife to live with him, it will refuse the relief."

To clarify its position, the bench took an example wherein life leaves husband on account of matrimonial disputes and in the meantime, the husband marries for the second time and brings home a second wife and simultaneously institutes a suit for restitution of conjugal rights against his first wife.

Court said, In such circumstances, the first wife may decline to live with her husband on the ground that the Muslim law permits polygamy but has never encouraged it.

The abovesaid observations were made by the high court bench while dealing with the wife's challenge to the decision of the Family court that had directed her to go back to her matrimonial home and perform conjugal obligations.

The high court reversed the family court's decision and held that in a suit filed by the husband for restitution of conjugal rights, a woman cannot be forced to cohabit with her husband even by way of a court's decree.

Importantly, the High Court also referred to an order of the Delhi High Court dated July 7, 2021, wherein it was observed that a uniform civil code (UCC) should not remain a mere hope in the Constitution.

"While expressing regret over the conflicts in the Society due to differences in various personal laws, the Court observed that in modern Indian society, which is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating. The youth of India belonging to various communities, tribes, castes or religions who solemnize their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce," the high court noted. 

Case title - Jinnat Fatma Vajirbhai Ami w/o Nishat Alimadbhai Polra vs. Nishat Alimadbhai Polra