The Kalaburagi Bench of Karnataka High Court held that even though a second marriage in the Muslim Law is legal, it does result in “enormous cruelty” to the first wife, and can be a ground for divorce.
The Bench explained that cruelty is a personal and variable concept and varies from person to person and situation to situation. The Court gave examples of how smoking, drinking and snoring also for that matter of fact may be lawful, but can still amount to cruelty to a sensitive spouse. Similarly, even though a second marriage maybe lawful under the Muslim Law, it may still cause cruelty to the first wife which justifies her claim for divorce.
This observation was made when an appeal was decided preferred by a Muslim husband against the Family Court order for dissolution of his marriage with his first wife, on the ground of cruelty. While agreeing to the Family Court’s order, the High Court held that the burden of explaining that his taking a second wife did not involve any sort of insult or cruelty to the first wife, and in the absence of a logical explanation, the Court will presume that the action of the husband of marrying a second time amounts to cruelty and hence, the wife will not be compelled to live with such a husband.
The husband in the present case claimed that his second marriage was done out of his parents’ compulsion and their influential power and that he had no intention of insulting the first wife. It was then observed by the Court that even before the marriage the husband and the family has mistreated the first wife and her family. The husband also had a child with the second wife and he did not give any explanation for the same. The mere fact that he was forced to marry again due to the pressure of the family does not hold true because he failed to prove that he had taken consent from the first wife or even informed her about the same. The Court held that “it is a matter of common knowledge that, women regardless of their religion and socio-economic conditions, detest their husbands contracting a second marriage; therefore, the proof of consent requires cogent evidence which is militantly lacking in this case.” Due to the ill- treatment of the first wife and her family and also the happening of the second marriage, the Court observed that the husband failed to protect his wife from his own violent parents and this shook the trust of the wife and hence she is entitled to oppose restitution of conjugal rights and can file for divorce.
Now, this judgement is quite fair in terms of removing religion as a barrier to file for divorce, especially in a religion where dual marriage is legal. However, the language used by the Hon’ble Judges with respect to women detesting second marriage is an example of how women are portrayed in the society. From what we experience in our society, be it a man or a woman, regardless of their sex, religion or socio- economic conditions, would detest their spouse contracting a second marriage without their consent. Jealousy, cruelty, insult and feelings are all a part of human and not just a woman. A marriage is an institution of both husband and wife, and anyone who breaks the trust of another, would lead to a fall of the institution.
-Radhika Goenka (LC Content Writer)
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