Case Details:
Jinnat Fatma Vajirbhai Ami (Appellant/Original Defendant) v. Nishat Alimadbhai Polra (Respondent)
C/FA/2202/2021
High Court of Gujarat
Bench: Justice J B Pardiwala and Justice Niral R. Mehta
Date of Decision: 20th December, 2021
Keywords: polygamy; Sharia Law; restitution of conjugal rights; Uniform Civil Code
Synopsis:
The Gujarat High Court allowed the wife’s appeal against the lower court’s decree of restitution of conjugal rights in favour of the husband. The High Court ruled that in a suit for restitution of conjugal rights, a wife cannot be compelled to cohabit with her husband against her will, and the principles of equity would be relevant in deciding the case.
A. Background:
Both the parties entered into a ‘nikah’ (marriage) on 25th May, 2010. The husband alleged that the wife left her matrimonial home on 20th July, 2017 along with their minor son without any lawful ground, and that the husband made various efforts to persuade his wife to return but to no avail. The husband also issued a legal notice to his wife on 22nd July, 2019 to which she did not respond. Accordingly, the husband instituted a suit for restitution of conjugal rights (Family Suit №47 of 2019) in the Family Court at Palanpur, District Banaskantha under section 282 of the Mohammedan Law.
In the proceedings before the Family Court, the wife made allegations of cruelty, and mental and physical torture against the husband, specifically that the husband had beaten her up and thrown her out of his house on 20th July, 2017. The wife also alleged that the husband’s family had been pressurising her to go to Australia, where the husband himself was planning to go. During the proceedings, the wife stated that she was willing to return to her husband’s house if he gave guarantee inter alia that he would not subject her to cruelty and reside away from his parents in a separate house with the wife. In his response, the husband stated that he had not subjected her to any cruelty and refused to separate from his parents.
The Family Court found that the wife had not been able to produce any evidence to support her version of the events that occurred on 20th July, 2017, for instance, the wife did not file any police complaint nor did she avail of any medical treatment for the alleged physical injury suffered at the hands of the husband. Pertinently, the Family Court noted that the wife’s allegations against the husband regarding torture are “unbelievable” as no “effort or endeavour has been made by her [the wife] for compromise” (para 16 of the Family Court order) while the husband’s legal notice to the wife in 2019 demonstrated that the husband had made endeavours to compromise. The Family Court also found issue with the wife’s demand that the husband live separately from his parents, stating that as per custom, a woman was expected to reside with her husband’s family after marriage and that under law, a woman cannot demand that she reside separately with her husband (away from her in-laws). The Court noted, “A wife is expected to be with the family of her husband after marriage” and expecting a man to choose between his aging parents (on one hand) and his wife and children (on the other hand) would be “torturous” and “unbearable” for a man (para 19 of the Family Court order). On an assessment of the facts and evidence, the Family Court found that the wife was unable to cope with her marital obligations alongside her job which led her to leave her marital home and demand that the husband live with her separately from his parents. The Court ruled that this did not amount to ‘reasonable cause’ to live separately under the law.
On 7th July, 2021, the Family Court awarded a decree for restitution of conjugal rights in favour of the husband. Accordingly, the Family Court directed the wife to return to her matrimonial home and perform her marital obligations.
The wife filed an appeal in the Gujarat High Court against the order of the Family Court.
B. Legal Issue(s):
What is the extent of the husband’s right to restitution of conjugal rights under Sharia Law?
C. Gujarat High Court’s Ruling in Jinnat Fatma Vajirbhai Ami:
1. Family Courts are obliged to read between the lines instead of adhering to strict rules of evidence
The Gujarat High Court considered the allegations of cruelty and torture which the wife had levelled against the husband in the form of various suggestions. The High Court noted that while “suggestions, as such, have no evidentiary value”, the Family Court was obliged to read between the lines to understand the reason for marital discord rather than apply strict rules of evidence (para 11 of Jinnat Fatma Vajirbhai Ami). In particular, the High Court referred to section 14 of the Indian Evidence Act, 1872 which provides that a Family Court may receive inter alia any information or matter to assist the court in dealing effectually with a dispute irrespective of whether it would be ‘otherwise relevant or admissible under the Indian Evidence Act, 1872’.
Observing thus, the High Court noted that this was not a case wherein the wife left her matrimonial home with the intention of deserting her husband. The HC further stated that on considering the evidence, it was clear that the wife was uncomfortable at her matrimonial home due to various domestic issues.
2. A suit for restitution of conjugal rights does not depend entirely on the right of the husband, and must be decided with regard to the surrounding circumstances and principles of equity
The Gujarat HC referred to section 281 of the Principles of Mohamedan Law by Mulla (20th edition) (an authoritative text on Sharia Law in India) which states the husband’s right to sue his wife for restitution of conjugal rights but does not outline any circumstances for rejecting/granting the suit.
Accordingly, the Gujarat High Court elaborated on the various defences available to a woman against a suit for restitution of conjugal rights in Sharia Law, which are as follows:
(i) The marriage between the parties was not valid (i.e. the marriage was irregular or void).
(ii) The husband was guilty of ‘legal cruelty’. The High Court interpreted legal cruelty as danger to the health or safety of the wife if she were to return to the husband.
(iii) The husband made false accusation of adultery against the wife.
(iv) There was gross failure by the husband in performing his marital duties towards the wife. The High Court explained that the defence of ‘gross failure’ would also cover conduct other than cruelty. As an example, the Court stated that gross failure would not cover a situation wherein the wife did not get along with her mother-in-law.
(v)The husband did not pay the wife ‘dower’ (in cases where the marriage had not consummated)
The High Court ruled that in deciding a suit for restitution of conjugal rights, an important consideration was whether it would be equitable to compel the wife to live with her husband, and that one’s understanding of the law in that regard would have to be in conformity with the modern social conditions. The Gujarat HC relied on Raj Mohammad v. Saeeda Amina Begum (AIR 1976 Kant 200) wherein the Karnataka High Court ruled that a husband’s suit for restitution of conjugal rights may be denied if the attendant circumstances would make it inequitable to grant restitution. In this regard, the Gujarat HC also referred to Anis Begum v. Muhammad Istafa Wali Khan (AIR 1933 All 634) wherein it was held that Courts must impose fair and reasonable terms in a suit for restitution of conjugal rights; Anis Begum in turn relied on the Privy Council decision in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum ((1866–67) 11 Moo Ind App 551).
The Gujarat HC also cited Abdul Kadir v. Salima (ILR 8 All 149 (FB)) wherein the Full Bench in 1886 held that in deciding a suit for restitution of conjugal rights, a court must be guided by principles of equity. The Gujarat HC then elaborated on some instances of inequitable conduct wherein the court would be justified in denying a husband’s suit for restitution of conjugal rights. For instance, where the husband has ulterior motive/bad faith/unworthy conduct or comes to the court with unclean hands or causes unnecessary harassment to his wife, the court may deny him relief. The court would also be justified in denying restitution of conjugal rights to the husband in a scenario wherein the restitution would cause hardship on the wife (whereas non-restitution would not involve any such hardship on the husband).
Absence of cruelty by husband alone does not indicate lack of hardship on the wife in restitution:
Citing Hamid Hussain v. Kubra Begum (AIR 1918 All 235), the Gujarat HC observed that even if there is lack of satisfactory proof of cruelty by the husband, the court may refuse to grant a decree of restitution if the court considers it inequitable and unfair to compel the wife to live with her husband.
3. The burden of proof lies on the plaintiff in a suit for restitution of conjugal rights
The Gujarat HC cited Lachman Uttamchand v. Meena (AIR 1964 SC 40) wherein the SC held that the burden of proof in a suit for restitution of conjugal rights lay upon the plaintiff to prove four essential elements, namely:
· The factum of separation
· Animus deserendi (a spouse’s intention to leave their matrimonial home)
· Absence of his/her consent
· Absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home
4. In administering Mohammedan Law, the court must consider changes in social conditions
The Gujarat HC cited Itwari v. Asghari (AIR 1960 All 684) wherein the Allahabad HC held that in determining what constitutes ‘cruelty’, the Court must consider the circumstances of each case and the prevailing social conditions. The Allahabad HC ruled that this test of cruelty would also apply in cases where the parties were Muslims.
5. The objective behind Order XXI Rule 32(1) and (3) of CPC is not to compel a wife to cohabit with her husband against her will
The Gujarat HC referred to Order XXI Rules 32(1) and 32(3) of the Civil Procedure Code, 1908 (CPC) which deals with decree for specific performance for restitution of conjugal rights, and observed that the objective behind the CPC provision is not to force a wife to cohabit and establish conjugal rights.
Finally, the Gujarat HC allowed the wife’s appeal and set aside the decree passed by the Family Court.
D. Commentary:
The judgment in Jinnat Fatma Vajirbhai Ami is significant because apart from ruling on the legal issue involved, the Gujarat HC also made a number of observations on the dynamic nature of judicial interpretation of Sharia Law. The HC linked the changes in Sharia Law in India to the changing societal conditions. The Gujarat HC highlighted the enactment of the Dissolution of Muslim Marriages Act, 1939, the landmark Supreme Court judgment in Mohd. Ahmed Khan v. Shah Bano Begum ((1985) 3 SCR 844) and more recently, the SC ruling in Shayara Bano v. Union of India (AIR 2017 9 SCC 1 (SC)) (which banned triple talaq in India) as instances of such changes.
Interestingly, Justice J B Pardiwala (one of the judges who decided the instant case), had made a similar observation in an earlier case, Jafar Abbas Rasool Mohd. Merchant v. State of Gujarat (2016) 57 (2) GLR 1529, that instead of blind adherence to any sacred text, a rational and scientific approach is adopted in addressing socioeconomic problems in accordance with secularism (a key feature of the Indian Constitution). The Gujarat HC then went on to discuss the need for a Uniform Civil Code (UCC) to avoid conflicts in society due to differences in various personal laws. The Gujarat HC quoted the Delhi HC in Satprakash Meena v. Alka Meena (C.R.P.1/2021 and CM APPL. 332/2021), “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” (para 57 of Satprakash Meena). Article 44 of the Constitution of India lays down that the State shall endeavour to secure a UCC for its citizens. The debate on the need for a UCC in India has come to the fore recently, with a petition filed by BJP leader, Ashwini Kumar Upadhyaya, in the Delhi High Court for the drafting and implementation of a UCC in India (Thapliyal, 2022). Apart from the practical considerations of the difficulty in reconciling personal laws governing people belonging to different religions, a legal question arises as to whether the Judiciary is empowered to direct the Executive to frame laws; this also seems to be the main contention of the respondent, the Central Government, in the petition before the Delhi High Court (Thapliyal, 2022).
The judgment in Jinnat Fatma Vajirbhai Ami is a progressive one to the extent that it emphasises the need for courts to consider the changing social conditions while interpreting the rights of a woman under personal laws governing the parties. At the same time, however, courts must be cautious that they do not place their own interpretation upon a provision of a personal law. In Jinnat Fatma Vajirbhai Ami, the Gujarat HC (somewhat unnecessarily) gave the example of a Muslim man who had taken a second wife during his first marriage. The Gujarat HC pointed out that in this case the first wife may refuse to cohabit with her husband on grounds that “Muslim law permits the polygamy but has never encouraged it” (para 24). While the Court’s objective behind the interpretation was to highlight that hardship to a wife may extend beyond corporal harm, in interpreting the Sharia Law, the judges’ actions are sometimes taken to constitute judicial over-reach. In fact, judicial over-reach was at the heart of the controversy in the aftermath of the 1985 Shah Bano ruling which led to the effect of the judgment being nullified through the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986. An approach more acceptable to the public may then be for courts to strictly interpret Sharia Law when called upon to do so, but in the context of equity and the prevailing social milieu.
E. Reference(s):
§ Mulla: Principles of Mahomedan Law. 20th Edition.
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