MUMBAI: The family court, in an unprecedented order, has restrained a Muslim US-returned paediatrician from marrying for the second time till he settles the rights and dues of his wife.
"The law and the religion both do not permit a Muslim man to perform another marriage as of a right by defeating and delaying the rights of his first wife," said Judge Swati Chauhan in her May 13 order. Worli resident Dr Akbar Khan (name changed) is directed "not to perform another marriage" till the January 30, 2015 order to grant his estranged wife Sakina (name changed) alternate accommodation is complied with. And, until her prayer for maintenance is not "heard, decided and fully complied with".
Sakina (34) had moved the court after finding that Akbar (45) had posted an ad on an online matrimonial website that he is "desirous of marrying an unmarried young girl in the age group of 18-25 years". She apprehended that Akbar's remarriage would "frustrate and defeat her lawful rights".
The couple married on May 27, 2001 and the next month moved to the US where four sons, between 12 and 4 years, were born. Frictions arose between them even before the family shifted back to Mumbai in September 2011 and into a leased flat in Versova.
Sakina had initially approached the family court in Bandra for custody of her three older children saying Akbar without her consent had snatched them from her. She claimed that the landlord had asked her to vacate the flat in July 2014. She pointed out that the Akbar had not complied with the court's earlier order to allow her access to her 3 sons and alternate accommodation. She urged that Akbar be directed not to marry another woman till her rights are adjudicated upon.
Akbar's advocate argued that his client had divorced Sakina, who had accepted the talaq as she had not challenged it. He said the parties are governed under the Muslim Personal Law and therefore a husband cannot be restricted from exercising his right to perform four marriages.Sakina's advocate Neelofar Akhtar countered that a husband can be restricted under the law and religion if he is defeating the rights of his first wife. She argued that the widely accepted perception of four marriages is nothing but an "end product of misrepresentation of the holy Quran". Akhtar cited the surah nisa ayat 3 and 129 saying Muslim men are permitted to enter into four marriages but it is after compliance of certain stipulations which serve as injunction.Judge Chauhan said that from a careful reading of its English version, it is understood that Muslim men are preached that they can marry for the second time only if they are able to be equitable to both the women. "In the same breath the surah nisa further states that practically this is not possible and therefore second marriage should not be contracted because it will cause injustice," she added.Chauhan said various authors and authoritative writings have discouraged polygamy and stringent conditions were imposed on men even during the lifetime of Prophet Mohammad. The judge said Akbar's "conduct is absolutely against the injunction of the Holy Quran", as he has "shown least care towards the issue of food, clothing, maintenance and accommodation of the petitioner".
Chauhan also took note of the Supreme Court's February 2015 judgment in Khursheed Ahmad Khan versus State of UP case, which Akhtar again relied upon, which held that a practice cannot acquire religious sanction just because it is permitted and even the practice of having more wives than one can be regulated or prohibited in the interest of public order, morality and health.The judge noted that despite the order for providing suitable accommodation for Sakina and her 4-year-old son, Akbar has kept her away from the matrimonial home and her 3 sons strategically. He has also not provided her with any maintenance and "very conveniently" remained absent for the hearings. "In such a situation, if the respondent performs another marriage, the rights of the petitioner would definitely be defeated," the judge said, concluding that "it is a fit case" to pass the direction.
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