A Division Bench of the Gujarat High Court has held that a woman cannot be forced to cohabit with her husband and establish conjugal rights with him by executing a Court's decree for restitution of conjugal rights, while overturning a Family Court's order granting restitution of conjugal rights to a Muslim husband.

The Division Bench of Justice J B Pardiwala and Justice Niral Mehta 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 referred to the Delhi High Court's recent order, which said the Uniform Civil Code (UCC) should not remain a mere hope in the Constitution.

The Division Bench has held that 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 held thus this while allowing a plea filed by a woman challenging the an 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".

"A perusal of the aforesaid provision indicates that a decree for restitution of conjugal rights cannot be enforced except by way of attachment of the property of the other party or compensation and mense profits", the Court held.

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.

The High Court observed that the Family Court arrived at the conclusion "based on conjecture that being a working woman, she could not come up with her household responsibilities and therefore, thought fit to walk out of her matrimonial home on a lame excuse of being harassed by her husband and other family members".

"Our notions of law in that regard have to be altered in such a way as to bring them in conformity with the modern social conditions," the High Court observed.

"Nothing has been shown to us in the form of any rule or otherwise which compel the Courts to always pass a decree in a suit for restitution of conjugal rights in favour of the husband," it said.

"If the Court feels, on the evidence before it, that the husband has not come to the Court with clean hands or that his own conduct as a party has been unworthy, or his suit has been filed with ulterior motives and not in good faith, or that it would be unjust to compel the wife to live with him, it may refuse him assistance altogether", the Court held.

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 homogeneous, the traditional barriers of religion, community and caste are slowly dissipating.

"The youth of India belonging to various communities, tribes, castes or religions who solemnise 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 Court quoted from the Delhi High Court's Judgment

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