KERALA HC JT ON POLYGAMI

IN THE HIGH COURT OF KERALA AT ERNAKULAM



1. SAIDALI K.H., S/O HASSAN,
... Petitioner

Vs

1. V.SALEENA, D/O ABOOBACKER,
... Respondent
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID


JUDGMENT


Harun-Ul-Rashid, J.



Can a Muslim husband exercise his right of divorce indiscreetly?

Can he marry more than one upto four at a time - is it an unbridled

authority for him? If not, should Muslim women suffer this tyranny for

all times? Should their personal law remain so cruel towards these

unfortunate wives? These are some of the questions arising for

consideration in this case.



2. This appeal is directed against the order of the Family Court,

Thrissur in O.P. No.1095 of 2006. The said Original Petition was filed by

the respondent/wife under Section 2(ii), (iv) and (viii) (a) (d) and (f) of the

Dissolution of Muslim Marriages Act, 1939 for dissolution of her marriage

with the appellant. By the impugned order, the Family Court allowed the

Original Petition. Hence, the appeal by the husband. The parties herein

are referred to as petitioner and respondent as in the Original Petition.

3. The marriage between the petitioner and respondent was

solemnised on 1.6.2002. Their only child is now aged five years. The

petitioner/wife alleged that her husband and his family members behaved

very cruelly towards her contrary to her expectations, that they ill treated

her mentally and physically and misappropriated 46 sovereigns of gold

ornaments which were given to her at the time of marriage. She further

alleged that after two months' of the marriage, her father was forced to give

Rs.50,000/- to the respondent/husband for starting a garment shop and that

the respondent/husband and his family members frequently ill treated her

demanding more dowry and even asked her to leave the matrimonial home

if more dowry was not paid. It is also pleaded in her petition for divorce

that the respondent failed to perform his marital obligations, that he

withdrew from co-habiting with her and also failed to maintain her and

their child. According to the petitioner, her status in the matrimonial home

was that of a housemaid. It is also pleaded by her that her husband is a

man of means, that he is running a barber shop as well as a garment shop,

that he has landed property and is getting a monthly income of Rs.15,000/-

and inspite of that he is not willing even to satisfy the basic needs of the

petitioner and the child. In paragraph 8 of the petition, it is pleaded that

the respondent/husband has married another lady by name Regina. In



paragraph 10 of the petition, she has stated that their relationship as

husband and wife has irretrievably broken and that the respondent

deliberately deserted her and the child. She has also stated that the failure

on the part of the respondent/husband to perform his marital obligations

and to maintain her and the child has also led to their separation which

cannot be repaired or revived.



4. The respondent filed a detailed objection denying the averments

contained in the petition. He denied having ill treated the petitioner

demanding more dowry and also the misappropriation of gold ornaments

given to her at the time of marriage. He also pleaded that the entire gold

ornaments are still in her possession. He also stated that he used to

maintain his wife and child. He denied that he is the proprietor of a barber

shop and a garment shop. He also denied his monthly income as alleged

by the petitioner. According to him, the petitioner/wife left the

matrimonial home without any reason and that he is ready and willing to

live with the petitioner and child and maintain them. He filed O.P.

No.360 of 2004 before the Family Court, Thrissur for restitution of

conjugal rights and O.P. No.614 of 2005 for custody of his child. It is

further contended by him that he is not bound to maintain the

petitioner/wife since she is living separately for no reason. The averment



contained in paragraph 8 of the petition that the respondent has contracted

a second marriage is not denied in the objection filed by him.



5. Section 2 of the Dissolution of Muslim Marriages Act deals with

the grounds for a decree of dissolution of marriage. The Section reads as

follows:



"Grounds for decree for dissolution of
marriage:- A woman married under muslim law
shall be entitled to obtain a decree for the
dissolution of her marriage on any one or more of
the following grounds, namely :

(i) that the whereabouts of the husband
have not been known for a period of four years;

(ii) that the husband has neglected or has
failed to provide for her maintenance for a
period of two years;

(iii) that the husband has been sentenced
to imprisonment for a period of seven years or
upwards;

(iv) that the husband has failed to
perform, without reasonable cause, his marital
obligations for a period of three years;

(v) that the husband was impotent at the
time of the marriage and continues to be so;

(vi) that the husband has been insane for
a period of two years or is suffering from leprosy
or a virulent venereal disease;


(vii) that she, having been given in
marriage by her father or other guardian before
she attained the age of fifteen years, repudiated
the marriage before attaining the age of eighteen
years:

Provided that the marriage has not been
consummated;

(viii) that her 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

(b) associates with women of evil repute
or leads an infamous life, or

(c) attempts to force her to lead an
immoral life, or

(d) disposes of her property or prevents
her exercising her legal rights over it, or

(e) obstructs her in the observance of
her religious profession or practice, or

(f) if he has more wives than one, does
not treat her equitably in accordance with the
injunctions of the Quran;

(ix) on any other ground which is
recognised as valid for the dissolution of
marriages under Muslim Law :

Provided that --

(a) no decree shall be passed on ground
(iii) until the sentence has become final;


(b) a decree passed on ground (i) shall
not take effect for a period of six months from the
date of such decree, and if the husband appears
either in person or through an authorised agent
within that period and satisfies the court that he
is prepared to perform his conjugal duties, the
court shall set aside the said decree; and

(c) before passing a decree on ground
(v) the Court shall, on application by the
husband, make an order requiring the husband to
satisfy the court within a period of one year from
the date of such order that he has ceased to be
impotent, and if the husband so satisfies the court
within such period, no decree shall be passed on
the said ground."


The grounds for dissolution of marriage alleged in the petition are: (i)

failure to provide maintenance to the wife for two years, (ii) failure to

perform the marital obligations, (iii) subjecting the wife to physical and

mental cruelty, (iv) depriving her of her property and (v) contracting a

second marriage but not treating her equitably in accordance with the

injunctions of the Qur'an.



6. Going by the pleading in the Original Petition, we find that there

is sufficient foundation in the grounds raised for dissolution of marriage.

Before the Family Court, the respondent admitted the fact of having

contracted a second marriage on 9.4.2006. The Family Court did not post

the case for evidence, but decided the case on 25.1.2007 holding that since




the second marriage is admitted by the respondent/husband, the

petitioner/wife is entitled to a decree of divorce. The Family Court also

held that the respondent/husband having married again, the petitioner/wife

was not willing to join him and that the said fact is sufficient to grant a

decree for dissolution of marriage.



7. Though the petitioner sought a decree for dissolution of marriage

on different grounds under the Dissolution of Muslim Marriages Act,

without adverting to any such ground, the Family Court granted divorce on

the only reason that the respondent/husband contracted a second

marriage. The question now raised in this appeal is whether the wife is

entitled to a decree of divorce for the only reason that the husband

contracted a second marriage. If the reason stated by the Family Court is

to be accepted, a Muslim man cannot marry more than once when his first

marriage subsists. Apart from the religious and legal aspects of marriage,

there is a social aspect also under Islamic law. Islamic law gives a high

social status to the women after marriage. Restrictions are placed upon

the unlimited polygamy of pre Islamic times and a controlled Polygamy is

allowed. Prophet Mohammed both by example and precept, encouraged

the status of marriage. The prophet restrained polygamy by limiting the

maximum number of contemporaneous marriages and by making absolute



equity towards all, obligatory on the man. It is worthy to note that the

clause in the Qur'an which contains the permission to contract four

contemporaneous marriages is immediately followed by an injunction

which puts the preceding passage to its normal and legitimate

dimensions. The former passage says that a man can marry two, three or

four times, but not more. The subsequent lines declare that if the man

cannot deal equitably and justly with all, he shall marry only one.



8. In India, polygamy is positively unlawful. It calls for a strong

moral if not a religious factor to eradicate polygamy from among the

Mussalmans. We have recognized the custom of drawing up a deed of

contract of marriage containing a formal renunciation of the right on the

part of the future husband to contract a second marriage during the

existence of the first. On execution of such a contract, a Muslim wife as of

right is entitled to enforce the terms.



9. True, Islam recognizes polygamy. The Holy Qur'an in Chapter 4

Verse 3 (Al Nisa'a - meaning "woman") teaches as follows:



"If ye fear that ye shall not be able to deal
justly with the orphans marry women of your
choice, two, or three or four; but if ye fear that ye
shall not be able to deal justly with them, then



only one or that your right hands possess. That
will be more suitable to prevent you from doing
injustice."


The permission to take more than one wife is made conditional, that is , he

should be able to deal justly with all the wives. The prophet has permitted

polygamy and has limited it to four. But it has been further ordained to

deal with them justly in matters of food, dress, residence and cohabitation

without discrimination, irrespective of whether one is rich or poor, high or

low. It is not permissible for a man to marry more than one woman if he

apprehends that he will be dealing with them unjustly or that he will be

failing in respecting their rights. If he is able to fulfill his duties to three

but not able to fulfill his duty towards the fourth, then the fourth marriage

is prohibited for him. If he is able to fulfill his duties to two but not able

to fulfill his duty towards the third, then the third marriage is prohibited

for him. Likewise, if he is able to fulfill his duties to one but not able to

fulfill his duty towards the second, then the second marriage is prohibited

for him. This is what the Quranic verse establishes: "Marry two or

three or four women of your choice. If you fear that you will not be

able to do justice to them, then marry only one. Otherwise you accept

those who are brought under your control as captives of war." What

has been commanded by God is external and possible equality in dealings.



10. Various authors and authoritative writings say that there cannot

be any equality in love and affection since it will not be possible to

maintain equality in those matters. This applies to sexual relationship

also. A man who is not infatuated by one woman may be infatuated by

another and the man cannot be blamed for such an attitude. The law

regarding equality does not apply to him in this regard because it is beyond

his capabilities. It is , therefore, clear that Qur-anic injunctions in the

matter of dealing justly and fairly with all the wives is in matters of

residence, food, cohabitation, dress etc. and not in love and affection.



11. The practice of having more than one wife, though not totally

prohibited, is discouraged by imposing stringent conditions making it

almost impossible to keep more than one wife at a time. These stringent

conditions were imposed on the man even during the life time of Prophet

Mohammed. The concept of polygamy, limited to four, with restrictions

was permissible during that time due to unavoidable facts and

circumstances prevalent during the said period. Going by Quranic

versions, permission to marry more than one woman, but not more than

four was given at a time when there were lots of orphans, widows and

captives of war who were unable to lead a dignified life and their strength

was far more than the men which gave rise to social problems in the


society. Appeal to the people to marry orphans, widows and captives of

war was necessitated on account of social inequality, economic distress

and like conditions to which women were put to suffer. The mandate

issued by Prophet Mohammed was intended to save the destitute and to

protect their belongings . Even after fifteen centuries, some people of

our country seem to be very particular in following the aforesaid tenets of

Islam unmindful as to whether such circumstances exist or not. People of

the community contract more than one marriage mostly for their personal

pleasure. There is no system in our country to ascertain and decide

whether such persons are eligible to contract more than one marriage

during the subsistence of the first marriage. We have seen women and

children standing in the verandah of courts who are either divorced

women or second, or third or fourth wife of such persons seeking

maintenance from their husbands. Unrestricted freedom to marry women

of their choice was enjoyed by men and subsequently to casually

pronounce talaq according to their whims and fancies. The indiscreet

conduct of such persons in marrying and keeping more than one wife is

continuing without any restriction. Most of such marriages are illegal

since they are against Quranic injunctions. What is the status of the wife

and children born in such marriages?



12. We find the Bhishmacharya of Indian judiciary V.R. Krishna

Iyer J. in his celebrated decision as early as in 1970 in Shahulameedu v.

Subaida Beevi, reported in 1970 K.L.T. 4 has referred to the very same

situation in his inimitable style in the following terms:



"It follows from these passages that the
Koranic injunction has to be understood in the
perspective of prevalent unrestricted polygamy
and in the context of the battle in which most
males perished, leaving many females or orphans
and that the holy prophet himself recognised the
difficulty of treating two or more wives with
equal justice and , in such a situation, directed
that an individual should have only one wife. In
short, the Koran enjoined monogamy upon
Muslims and departure therefrom as an
exception. That is why, in the true spirit o the
Koran, a number of Muslim countries have
codified the personal law wherein the practice of
polygamy has been either totally prohibited or
severely restricted. (Syria, Tunisia, Morocco,
Pakistan, Iran, the Islamic Republics of the
Soviet Union are some of the Muslim countries
to be remembered in this context). A keen
perception of the new frontiers of Indian law
hinted at in Art. 44 of the Constitution is now
necessary on the part of Parliament and the
Judicature.

A. Yusuf Ali in his commentary on the
Holy Quran has pointed out with reference to the
original text, in its proper context, that the
prophet first strictly limited the unrestricted
number of wives of the "Times of Ignorance" to a
maximum of four, provided you could treat them
with perfect equality in material things as well as
in affection and immaterial things. As this



condition is most difficult to fulfill, the
recommendation was understood to be towards
the practice of monogamy. Mr. Justice
Hidayatullah in his Introduction to Mulla's
Principles of Mahomedan Law, 16th Edn, has
approved of the modernisation of the family law
of the Muslims including the abolition of
polygamy.


13. In this context, we have noticed a piece of legislation in

Pakistan. Muslim Family Laws Ordinance, 1961 (No.8 of 1961)

(hereinafter referred to as "the Ordinance") was issued to give effect to

certain recommendations of the Commission on Marriage and Family

Laws. Section 6 of the Ordinance deals with polygamy and provides for

appointing an Arbitration Council consisting of the Chairman and

members. Sub-section (1) of Section 6 reads as follows:



"(1) No man, during the subsistence of an
existing marriage, shall, except with the previous
permission in writing of the Arbitration Council,
contract another marriage, nor shall any such
marriage contracted without such permission be
registered under this Ordinance.



As per sub-section (2) of Section 6 of the Ordinance, for a person to

contract another marriage, he shall apply to the Chairman in the

prescribed manner together with the prescribed fee and shall state the

reasons for the proposed marriage and whether consent of the existing



wife or wives has been obtained. Sub-section (3) mandates that the

Arbitration Council constituted, if satisfied that the proposed marriage is

necessary and just, grant the permission applied for. Sub-section (4)

directs the Arbitration Council to record its reasons for the decision and

the aggrieved party can file a petition to the Appellate Authority. Sub-

section (5) of Section 6 stipulates that if a man contracts another marriage

without the permission of the Arbitration Council, he shall pay

immediately the entire amount of the dower due to the existing wife and if

not paid shall be recoverable as arrears of land revenue and on conviction

upon complaint be punishable with simple imprisonment which may

extent to one year, or with fine which may extend to five thousand rupees,

or with both.



14. Under sub-section (1) of Section 7 of the Ordinance, any man

who wishes to divorce his wife shall, after pronouncing talaq, give notice

to the Chairman in writing of his having done so and shall supply a copy

thereof to the wife. Sub-section (2) of Section 7 provides that whoever

contravenes the provisions of sub-section (1) shall be punishable with

simple imprisonment for a term which may extent to one year, or with fine

which may extend to five thousand rupees, or with both. Other conditions

are also stipulated in sub-sections (3) to (6) of Section 7 of the Ordinance




for effecting Talaq.

15. It is a well accepted view that the arbitrary unilateral power to

inflict instant divorce does not accord with Islamic injunctions. The Holy

Qur'an expressly prohibits a man to seek pretext for divorcing his wife, so

long as she remains faithful and obedient to him. In the absence of serious

and permissible grounds, no man can justify a divorce, either in the eye of

religion or law. If he abandons his wife or puts her away in simple

caprice, he draws upon himself the divine anger, for the curse of God, said

the Prophet, rests on him who repudiates his wife capriciously. The law

administered in Muslim countries like Iraq is that the husband must

satisfy the court about the reasons for the divorce. These provisions are

intended to regulate, control and supervise the sanctity of marriage and

divorce. By enacting such laws, an effective system is brought about for

protecting society and women from indiscreet marriages and divorce.

Even in the 21st century, though the practice of polygamy is allowed in the

strict sense by Islam, there is no system or measures in India to supervise

or control such indiscreet marriages and divorce. Ulemas, Khazis and

Clergymen in India have not given their serious thoughts to this social

problem nor have they chosen to appeal to the Government to make

appropriate legislation on the subject. A legislation for setting up bodies



at central and regional levels to regulate, control and supervise the

sanctity of marriage and divorce is the need of the hour.



16. Explanation to Section 125(3) Cr.P.C. reads as follows:



"If a husband has contracted marriage with
another woman or keeps a mistress, it shall be
considered to be just ground for his wife's refusal
to live with him."


The Supreme Court had occasion to consider a question which is relevant

in this context in the decision reported in Subanu alias Saira Banu v.

A.M. Abdul Gafoor, A.I.R. 1987 S.C. 1103. The Apex Court held that

right has been conferred on the wife under the Explanation to Section 125

(3) Cr.P.C. to live separately and claim maintenance from the husband if

he breaks his vow of fidelity and marries another woman or takes a

mistress. The Explanation is of uniform application to all wives including

Muslim wives whose husbands have either married another woman

otherwise than in accordance with the teachings of Quran or taken a

mistress. The Apex Court further held that in this connection, any offer to

take the first wife back cannot be considered to be a bona fide offer unless

the husband offers to set up a separate residence for her, for a husband

who marries again cannot compel the first wife to share the conjugal

home with the co-wife.



17. In the decision reported in Lily Thomas v. Union of India,

A.I.R. 2000 S.C. 1650, the Apex Court held that inspite of the first

marriage, a second marriage can be contracted by the husband under

Mohammedan Law subject to certain religious restrictions. In paragraph

61 of the judgment, Justice R.P. Sethi observed that Muslim Law is based

upon a well recognized system of jurisprudence providing many rational

and revolutionary concepts which could not be conceived by the other

systems of Law in force at the time of its inception. It is further observed

that the concept of Muslim law is based upon the edifice of Shariat and

that Muslim Law as traditionally interpreted and applied in India permits

more than one marriage during the subsistence of one and another though

capacity to do justice between co-wives in law is condition precedent and

that even under Muslim Law plurality of marriages is not unconditionally

conferred upon the husband. It is also observed that the progressive

outlook and wider approach of Islamic Law cannot be permitted to be

squeezed and narrowed by unscrupulous litigants, apparently indulging in

sensual lust sought to be quenched by illegal means, who apparently are

found to be guilty of the commission of the offence under the law to

which they belonged before their alleged conversion.


18. We appeal to all concerned within the community and the

administrative authorities and the Government to study the problem faced

by the helpless and destitute women and children and to bestow thoughts

on the ways and means to alleviate such social problems.



19. Coming to the case on hand, we find that the reasons stated by

the Family Court that the second marriage contracted by the

respondent/husband and the refusal of the petitioner/wife to live with the

husband on account of his second marriage are not by themselves

sufficient grounds to grant a decree for dissolution of marriage under the

Dissolution of Muslim Marriages Act. Refusal of the wife to share the

conjugal home with the co-wife is justified for claiming maintenance. In

such circumstances, it is the duty of the husband to set up separate

residence for her. At the same time, we find that the petitioner/wife had

pleaded several other grounds permissible under law for divorce.

Inequitable treatment to one wife against the Quranic injunction gives rise

to a tenable claim for divorce. The Family Court failed to examine

whether the petitioner/wife was entitled to a decree for dissolution of

marriage under any or all the heads for which there is sound foundation

in the pleadings.






20. In the result, the order under appeal is set aside and the case is

remanded to the Family Court, Thrissur for fresh disposal in accordance

with law. There will be no order as to costs.



21. We place on record our deep appreciation for the strenuous

efforts taken by Adv. Sri. M.P.M. Aslam as amicus curiae and for his

valuable assistance. We would also like to make a special mention of

the able assistance of Sri. E.S..M. Kabeer, learned counsel for the

appellant and Smt. A. Parvathi Menon, learned counsel for the respondent.



The Registry shall send a copy of this judgment to the Ministry of

Law and Justice, Government of India, New Delhi, the Chief Secretary to

the Government of Kerala, Thiruvananthapuram and the Chairman, Kerala

State Wakf Board.