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Second Marriage ground for divorce for muslim woman

Comment : This decision is a preposition for “the second marriage of a muslim husband is cruelty for the wife entitling her to obtain divorce notwithstanding the husband’s promise of equal treatment to both the wives, which the court termed as a practical impossibility”
 
Kerala High Court
K. Muhamma Latheef, S/O K. … vs Nishath, D/O P. Mammad on 11 March, 2003
Equivalent citations: AIR 2004 Ker 22
Author: A Gafoor
Bench: K A Gafoor, K Joseph

JUDGMENT

Abdul Gafoor, J.

1. Husband is the appellant. He is assailing the decree for dissolution of the marriage. The parties got married on 30-3-1997. Thereafter on 28-7-1998, both of them were separated. They are living separately since then. During the subsistence of the marriage, within 5 months of separation, the appellant/husband got remarried. He is having a child in the new Wedlock. This has come to light when he was examined in the Court below.

2. When they were living separately, the respondent/wife filed a suit seeking divorce on the ground of cruelty on the part of the appellant. She had complained of physical and mental cruelty. The Court below considered that aspect. But the Court below was much concerned with the attitude of the appellant/husband in getting remarried within 5 months of separation. If, during the subsistence of a valid marriage the husband had remarried, another, necessarily, that will be a mental cruelty towards the first wife even though that is not the cruelty alleged in the petition. Morely because the appellant was willing to cohabit with the respondent while continuing the second marriage, there was no reason to Court out the respondent, denying her a decree for dissolution of marriage. The Court below had taken note of the facts revealed in the examination of the appellant that the appellant had married again and was having a child in that marriage. That marriage is happily going on. If the respondent is foisted against the appellant, it may result in disharmony in that marriage life as well. If the respondent is not willing to be a co-wife with another for the appellant, she cannot, in such circumstances, be compelled to live with the appellant. She has to seek a life of her own. She is now aged only 23 years. This is an apt period when she can find out a new life.

3. In such circumstances, we are of the view that there is no reason to reverse the decree taking into account not only the future of the parties to this case, but also that of the second wife and the child born in that wedlock.

4. The fancy of the appellant that a Muslim husband can have more than one wife is also no reason to reverse the decree. Bigamy is permitted as per Muslim Law under exceptional circumstances. The circumstances under which it is permitted also have to be taken note of. As at present, such circumstances do not exist. Not only that, even to have a second wife, certain conditions have to be satisfied by the husband including the financial capacity, the physical capacity and capability of treating more than one wife without discrimination and to give both of them equal conveniences and considerations in life. Even if the appellant contends that he can equitably treat both the wives without discrimination, it is a human impossibility. Even if possible that Condition alone is not sufficient. Instead of patching up the differences, the appellant was planning for a second marriage. In the light of this conduct, the finding of the Court below that “the respondent could not be expected to treat the petitioner equitably with his second wife who is now along with him”, cannot be stated to be faulty. In such circumstances, he cannot justify his second marriage and contend that he can treat both equitably. Therefore, that contention cannot be accepted, in the facts and circum stances of the case.

5. When thus the appellant had married another, within five months of separation from the respondent wife, that itself manifests the cruelty towards her. If the decree is reversed, it will affect the harmonious life of the second wife as well.

Therefore, the appeal fails and is dismissed.

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