The Hon’ble High Court of Karnataka has held that while contracting a second marriage by a Muslim husband is lawful, it often causes “enormous cruelty” to the first wife, justifying her claim for divorce.
The said judgement was pronounced in an appeal filed by one Mr. Yusufpatel against the judgement and decree passed on 02.04.2018 whereby the learned Principal Judge, Family Court, Vijayapura having decreed the Respondent-wife’s suit in O.S.No.47/2016 had dissolved the marriage between them.
Both the Appellant and Respondent were Sunni Muslims who were married on 17.07.2019 in the presence of Jamat people of Masjid-e-Mehraj at Bada Makan, Siddakha Road, Bengaluru as per the Shariyat Law.
The Respondent- wife then filed a suit in O.S.No.47/2016 seeking a decree for dissolution of marriage on the grounds of cruelty and desertion alleging that she and her parents were manhandled by the Appellant and his parents without any justification whatsoever and the Appellant had contracted a second marriage with another lady and had begotten a child from the said lady.
The Appellant herein being the Defendant had resisted the suit claim in addition to seeking a decree for the restitution of conjugal rights inter alia contending that he had always loved the Respondent and that he had contracted the second marriage only because of the irresistible pressure mounted by his parents who are quite powerful & politically influential.
The Appellant further submitted that the Shariat Law permits a Mohammadan to have plural wives and such a conduct per se does not amount to cruelty, nor constitute a ground for opposing restitution of conjugal rights.
After taking note of the merits of the present matter, the division bench comprising of Justice P. Krishna Bhat and Justice Krishna S. Dixit declined to interfere in the matter reasoning that cruelty was a very subjective concept and the conduct constituting is “indefinitely variable”.
The observation was made while deciding an appeal preferred by a Muslim husband, against the Family Court order for dissolution of his marriage with the first wife, on the ground of cruelty.
While upholding the Family Court’s order, the High Court relied on a Privy Council verdict in Moonshee Bazloor Ruheem v. Shamsurnissa Begum, 11 MIA 551, whereby it was held as follows: “The onus today would be on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first, and in the absence of cogent explanation the Court will presume under modern conditions that the action of the husband in taking a second wife involved cruelty to the first, and it would be inequitable for the Court to compel her against her wishes to live with such a husband.”
In the case at hand the Appellant-husband had submitted that he was compelled into contracting a second marriage by his influential parents. However, taking cue there from the privy council Judgment the High Court said: “The appellant has failed to establish his contention that the entry of the second lady to the existing matrimony is with the prior consent of the respondent-wife; it is a matter of common knowledge that, women regardless of their religion and socio-economic conditions, detest their husbands contracting second marriage; therefore, the proof of consent requires cogent evidence which is militantly lacking in this case.”
Another ground for upholding the Family Court order was that the wife was tormented by her in-laws, and there was nothing on record to indicate that the husband tried to prevent the same. The Court observed as follows: “It is a bounden duty of every husband to protect his wife in any circumstances; what acts the appellant did, to protect his wife from the onslaught of his parents are neither pleaded nor proved; the contention that his parents are very influential & powerful is too feeble a justification for allowing the poor wife to be tortured.”
The bench thus added: “The very institution of marriage is founded inter alia on the mutual support and security of spouses; if the husband fails to protect his wife from his own violent parents, the very trust of the wife is shaken and therefore she is entitled to oppose restitution of conjugal rights, lest she should undergo the same ill treatment.”
The appeal lacking in merits was thus rejected.