Unequal Treatment of Wives a Valid Ground for Divorce for Muslim Women: Kerala High Court

Team SoOLEGAL 20 Dec 2021 2:20pm

Unequal Treatment of Wives a Valid Ground for Divorce for Muslim Women: Kerala High Court

The Kerala High Court has declared that a Muslim Man’s reluctance to fulfill his marital vows with his first wife after a second marriage is a legitimate reason for divorce.

In its ruling, a division bench of Justices A. Muhamed Mustaque and Sophy Thomas observed:
“The refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quaranic injunctions which commands equal treatment of the wives if the husband contracts more than one marriage. In such circumstances, we have no hesitation to hold that the appellant – wife is entitled to get a decree of divorce on that ground also.”

Further the Court added, “If there exists a marriage with another lady during the subsistence of the previous marriage, the burden is on the husband to prove that he had treated both wives equitably in accordance with the injunctions of Quran.”

The Bench was hearing an appeal filed by a Muslim lady who was dissatisfied with a family court judgment that refused her a divorce decree. She married the respondent herein in 1991 and they had three children together. During his stay overseas, the respondent entered into a marriage with another lady, which lasted till the end of their marriage.

In her divorce petition, she cited Section 2(ii), 2(iv) and 2(viii) of the Dissolution of Muslim Marriages Act, 1939. Section 2(viii) (f) was also mentioned throughout the pleadings. According to Section 2(ii), the wife is entitled to a divorce if her husband has neglected or failed to provide for her support for two years.

However, a review of the records revealed that the husband used to give support for the appellant when he was away and therefore agreed with the trial court’s decision on this point. Coming to the following basics, Section 2(iv) indicated that woman is entitled to a divorce if the husband has failed to execute his marital responsibilities for three years without sufficient excuse.

The appellant said in the petition that the respondent – husband ceased visiting her on February 21st, 2014, and this fact was not refuted in the written statement. The respondent, on the other hand, claims that he was compelled to marry another woman because the appellant refused to cooperate with him on his bodily demands.

“We are not persuaded to believe the version of the respondent in this regard. Three children were born in wedlock. Two of them got married. Absolutely, there was no evidence to show that the respondent was willing to cohabit with the appellant. That means, he failed to perform the marital obligations. The petition for divorce was filed in the year 2019. They were living separately at least for a period of five years prior to filing this petition. In such circumstances, we are of the view that the appellant made out a ground for divorce under Section 2(iv) of the Act.”

The court remarked that the family court assumed that giving support would suffice to indicate that the husband fulfilled his marital responsibilities. The bench determined that this conclusion was erroneous and did not hold up to legal scrutiny. Finally, sections 2(viii)(a) and (f) declare the following:
“That the husband treats her with cruelty, that is to say – (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill – treatment, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.”

Since there had been no cohabitation in the previous five years, the Court determined that the case of bodily or mental mistreatment could not be supported under the Act. However, the respondent had not rejected the allegations of contracting a second marriage. Staying away from his first wife for five years would demonstrate that he did not treat them equally. There is no evidence that the respondent resided with the appellant after 2014.

Noting that reluctance to cohabit and execute marital responsibilities with the prior wife is a breach of Quaranic Injunctions, the Court determined that this was a suitable case for a divorce to be granted.

As a result, the appeal was granted, and the trial court verdict was reversed. Advocated C. Ijlal and Ummul Fida represented the appellant, while Advocated T.P. Sajid and Shifa Latheef represented the respondent.

Tagged: Kerala High Court   Muslim Women   Justice A. Muhamed Mustaque   Justice Sophy Thomas   Muslim Marriages Act   Advocated C. Ijlal   Advocate Ummul Fida  
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