The Court noted that the husband failed to establish that the entry of the second wife to the existing matrimony was with the prior consent of the first wife.
The Kalaburagi Bench of the Karnataka High Court has held that though contracting a second marriage by a Muslim husband may be lawful, it often causes "enormous cruelty" to the first wife.
The order passed by a Division Bench of Justices Krishna S Dixit and P Krishna Bhat states,
"Merely because an act is lawful, it does not per se become justifiable in married life; for example, of course subject to all just exceptions, smoking and drinking are not unlawful; snoring too, is not; but still in certain circumstances they may amount to cruelty to a sensitive spouse; on the same analogy though contracting a second marriage by a Muslim may be lawful, but it more often than not, causes enormous cruelty to the first wife justifying her claim for divorce."
Karnataka High Court
The Bench made this observation in its order dismissing an appeal preferred by a Muslim husband against a family court order for dissolution of marriage with his first wife, on the ground of cruelty.
The appellant Yusufpatel, hailing from north Karnataka, had married Ramjanbi in July 2014 in Bengaluru as per Sharia law. Shortly after that, he contracted a second marriage and his second wife gave birth to a child. Subsequently, Ramjanbi filed a suit seeking dissolution of marriage on the grounds of cruelty and desertion, alleging that her parents were manhandled by Yusufpatel and his parents.
The husband opposed the suit claim and sought for restitution of conjugal rights.
The family court, after finding merit in the first wife's petition, allowed the plea and granted dissolution of marriage.
Aggrieved by this decision, Yusufpatel filed an appeal before the High Court, contending that he still loved his first wife, and that he was immensely pressured by his parents to marry a second time.
He also contended that as per Sharia law, Muslim men were allowed to marry multiple times and such conduct does not amount to cruelty or constitute a ground for opposing restitution of conjugal rights.
After taking note of the submissions of parties, the High Court firstly observed that the husband had failed to establish that the entry of the second wife was with the consent of the first wife.
"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."
On the submission of the first wife that she and her parents were being tortured, the Court observed that there was nothing on record to indicate that the husband tried to prevent the same.
"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 Court further held,
"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."
This apart, the Court also held that marital cruelty is a very subjective concept, and that the conduct constituting the same is "indefinitely variable".
"....it needs to be stated that "marital cruelty" as a concept, by its very nature defies definition; Courts have emphasised that in the backdrop of spousal relationship, words, acts or conduct constituting cruelty are infinitely variable with the increasing complexities of modern life; no attempt at defining cruelty is likely to succeed, fully merely because an act is lawful, it does not per see become justifiable in married life...."
With these pertinent observations, the Bench declined to interfere in the appeal matter.
[Read judgment here]
