Tuesday 21 December 2021

Whether Muslim wife is entitled to get a divorce if her husband gives unequal treatment due to his second marriage?

 The next ground is under Section 2(viii) (f) of the Act.

Though in the petition, this provision has not been specifically

mentioned, we are of the view that mere omission to quote a

statutory provision will not disentitle the claim for divorce on that

ground if there are sufficient averments in the petition. There are

averments in the petition regarding contracting second marriage

by husband with Hajira. That fact has not been denied. 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. Staying away from the first wife for five

years itself would show that he had not treated them equally. The

respondent has no case that he lived with the appellant after 2014. The refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic 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. We, therefore, allow

this appeal and set aside the impugned judgment. We grant

divorce under Sections 2(iv) and 2(viii) (f) of the Act. We,

accordingly, dissolve the marriage between the appellant and the

respondent solemnised on 04.08.1991. {Para 7}

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR. JUSTICE A.MUHAMED MUSTAQUE

&

 MRS. JUSTICE SOPHY THOMAS

MAT.APPEAL NO.431 OF 2021

RAMLA  Vs ABDUL RAHUF 

Mat.Appeal No.431/2021 

Author: A.Muhamed Mustaque, J.

Dated: 1ST DAY OF DECEMBER 2021 

The appellant is the petitioner in O.P.No.41/2019 on the file

of the Family Court, Thalassery. The above petition was filed on

enumerated grounds of the Dissolution of Muslim Marriages Act,

1939, (for short, the 'Act') for divorce. The parties are Muslims and

they married in accordance with the personal law applicable to

them on 04.08.1991. In the petition for divorce, the grounds

under the specific head of Section 2(ii), 2(iv) and 2(viii) of the Act

alone were referred. However, the pleadings in the petition

indicate the ground for divorce under Section 2(viii) (f) as well.

2. The Family Court dismissed the petition as the appellant

wife failed to make out a case under Sections 2(ii), 2(iv) and 2(viii)

(f) of the Act.

3. The brief facts are as follows:

The parties married on 04.08.1991. In the wedlock, three

children were born. The respondent was abroad. He contracted

another marriage with a lady namely Hajira during the subsistence

of marriage with the appellant. That has been specifically averred

in the petition and not denied in the written statement. According

to the respondent, he contracted second marriage as the appellant

refused to have a sexual relationship with him.

4. We will refer first to the grounds urged in the petition

for divorce.

Section 2(ii) states as follows:

“that the husband has neglected or has failed to provide for

her maintenance for a period of two years.”

Section 2(iv) states as follows:

“that the husband has failed to perform, without reasonable

cause, his marital obligations for a period of three years.”

Section 2(viii) (a) and (f) states as follows:

“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 Qoran.”

4. The Family Court formulated the points for

consideration on three different heads except with reference to sub

clause (f). It has come out in the evidence that the respondent

used to provide maintenance. Ext.B1 series clearly indicates that

the maintenance provided by him. The statutory provision clearly

states that it is only on failure to provide maintenance for a

continuous period of two years, the ground for divorce is attracted

on that ground. The appellant has a case that the above amount

was in fact the money collected from abroad due to the

intervention of local politicians to meet the marriage expenses of

the daughter and not the maintenance provided. There was no

evidence to that effect. Ext.B1 series would show that the amounts

have been credited in the account on different occasions during


the years 2017 and 2018. We need not interfere with the

impugned order to the extent rejecting the claim for divorce on

that ground.

5. Section 2(iv) refers that the husband has failed to perform

marital obligations for a period of three years. The appellant had

stated in the petition that from 21.02.2014 onwards, the

respondent husband stopped visiting her. This fact has not been

denied in the written statement. On the other hand, according to

the respondent, he was forced to marry another lady for the reason

that the appellant failed to co-operate with him on his physical

needs. We are not persuaded to believe the version of the

respondent in this regard. Three children were born in the

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 atleast 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. We also note that the Family Court had not

entered into any finding on this point while discussing the point

Nos.2 and 3. The Family Court carried on an assumption that

providing maintenance would be sufficient to prove that the

husband performed marital obligations. This finding, according to

us, is erroneous and cannot stand the scrutiny of the law.

6. The next ground is under Section 2(viii) (a) of the Act.

This ground refers to the physical and mental cruelty of the wife.

We noted that the parties are living separately for more than five

years before the institution of the petition. That would show that

there was no cohabitation. In such circumstances, we will not be

able to justify the case put forward by the appellant-wife in regard

to the physical or mental cruelty in the context of Section 2(viii)(a)

of the Act.

7. The next ground is under Section 2(viii) (f) of the Act.

Though in the petition, this provision has not been specifically

mentioned, we are of the view that mere omission to quote a

statutory provision will not disentitle the claim for divorce on that

ground if there are sufficient averments in the petition. There are

averments in the petition regarding contracting second marriage

by husband with Hajira. That fact has not been denied. 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. Staying away from the first wife for five

years itself would show that he had not treated them equally. The

respondent has no case that he lived with the appellant after 2014.

The refusal to cohabit and perform the marital obligations with the

previous wife is tantamount to the violation of the Quranic

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. We, therefore, allow

this appeal and set aside the impugned judgment. We grant

divorce under Sections 2(iv) and 2(viii) (f) of the Act. We,

accordingly, dissolve the marriage between the appellant and the

respondent solemnised on 04.08.1991. No order as to costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

SOPHY THOMAS

JUDGE


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