Madras High Court: In an appeal filed by the husband against the Judgment and Decree passed by the Family Court, wherein the Court ordered dissolution of marriage between him and his first wife, the division bench of RMT. Teekaa Raman* and P.B. Balaji JJ. upheld the decree of dissolution of marriage passed by the Family Court in favour of the wife, as the husband has not treated the first wife and the second wife equally as required under the provisions of Islamic Law.
Background:
The wife filed a suit under Section 2(ii)(iv)(viii)(a)(d) of Dissolution of Muslim Marriages Act, 1939 for declaration by dissolving the marriage between her and the appellant husband on the ground of cruelty and that he is not treating her equivalent to his second wife. She alleged that during her pregnancy the husband and his mother did not treat her well. When she went to Chennai to live with her husband, a child was born to the parties. However, the child died on the next day. Thereafter, the husband’s sister abused her by stating that the husband could solemnize another marriage, since the wife has no child. When the wife came to her parents’ home, the husband threatened her by uttering that if she is not coming back to live with him, he will solemnize another marriage and will publish their intimate photographs on internet and that he will murder the family members of the wife.
Unable to maintain herself, the wife filed a maintenance case, which was allowed in her favour and also filed a Domestic violence complaint to bring back the jewels and household articles. In the meantime, the husband had filed for the relief of restitution of conjugal rights and the same was allowed on 04-05-2021. However, on 05-09-2021, the husband married another lady and ill-treated the wife and not treated the wife on a par with the second wife. Hence, the suit for dissolution of marriage was filed by the wife.
Analysis:
The Court said that that no prudent women will leave the matrimonial home without any reason unless she was compelled to do so by the circumstances felt by her that it is totally unsafe for her to stay in the matrimonial home. Further, it said that the husband has not treated the first wife and the second wife equally as required under the provisions of Islamic Law. Under the Islamic Law, the husband is entitled for Polygamous marriage, however, he has to treat all the wives equally.
The Court said that the wife has successfully demonstrated that the husband had treated her unequally with his second wife and has not taken care of her and he did not fulfil the marital obligations after they got separated.
The Court said that as a husband, he is duty bound to maintain the wife, even while she was with her parents. If he is aggrieved by her separation, then he should have taken measures for reunion and if it fails then on reasonable ground, he can pronounce Talaq as per the Personal Law. However, no such act was done by the husband.
The Court viewed that the husband has failed to maintain the wife for two years and failed to discharge the matrimonial obligations for three years. Further, he has not treated the first wife and the second wife equally.
After referring to Kothar Beevi v. K. Aminudeen, 2017 SCC OnLine Mad 37609, wherein the right of Muslim woman to live separately when congenial atmosphere is not available in the matrimonial home was recognised, the Court viewed that the findings rendered by the Family Court that the husband had treated the wife with cruelty and has not treated the wife on a par with and equally with the second wife and accordingly granted the dissolution of marriage is well considered and well merited, and does not warrant any interference.
[P.K.Mukmuthu Sha v P.S. Mohammed Afrin Banu, 2023 SCC OnLine Mad 7936, decided on 22-12-2023]
*Judgment Authored by: Justice RMT. Teekaa Raman
