Muslim law entitles husband to polygamy, but he has to treat all wives equally: Madras High Court

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Though Islamic Law entitles a husband to polygamy, he has to treat all his wives equally, failing which it would amount to cruelty, the Madras High Court recently held [Mukmuthu Sha v. Mohammed Afrin Banu].

A Bench of Justices RMT Teeka Raman and PB Balaji upheld the decision of a family court in Tirunelveli which had passed an order of dissolution of marriage on the ground of cruelty.

The Bench noted that the husband and his family members initially tortured and harassed his first wife. He later performed a second marriage with another woman and has been living with her since.

“…he (husband) has not treated the first wife and the second wife equally as required under the provisions of the Islamic law. Under the Islamic law the husband is entitled to polygamous marriage however, he has to treat all the wives equally,” the judgment stated.

As per the first wife’s version, she was harassed by her husband and his mother and his sister. She stated that while she was pregnant, her husband and in-laws didn’t take proper care of her and even subjected her to cruelty by giving her food she was allergic to. She claimed that the mother-in-law scolded her for not properly draping a saree while she was pregnant. She further stated that after she had a miscarriage, her sister-in-law harassed her for not being able to bear a child.

Further, the wife claimed that her husband kept comparing her with some relatives and even disliked the food she prepared for him. When the torture and harassment became intolerable, the wife left the matrimonial house. The husband demanded her return, failing which he would marry a second time. The first wife claimed that her husband has been living happily with the second wife.

The husband denied all the allegations.

However, after going through the material on record, the Court noted that the wife successfully demonstrated that her husband had treated her unequally with his second wife and did not take her proper care of her. The Bench held that the husband even failed to perform his marital obligations towards the first wife.

“As a husband, he is duty bound to maintain the wife even while she was with her parents. If at all he is aggrieved by her separation, then he should have taken measures for reunion and if it failed then on reasonable grounds he could pronounce Talaq. But in the instant case, no such act was done by the husband and in fact he did not maintain the first wife and failed in his duty and has married another woman.”

All these circumstances, the Bench said, prove that the husband meted out several cruelties to his first wife, as a result of which she returned to her parental home.

“Hence, we are of the view that the husband having not treated the first wife and the second wife equally, and the first wife clearly demonstrated the cruelties met out to her by the husband and that he failed to maintain her for two years. We therefore, are of the view that the findings of the Family Court that the husband treated the wife with cruelty and has not treated her on par and equally with the second wife and accordingly granted dissolution of marriage, is well merited and does not warrant interference,” the judgment stated.

With these observations, the Bench dismissed the husband’s appeal.

Advocate K Abiya appeared for the husband.

Advocate C Jeya Indira Patel was appointed for the wife from the Legal Aid Panel.

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