Although Islamic Law Allows Polygamous Marriage, Husband Must Treat All Wives Equally: Madras High Court Allows Dissolution of Marriage By First Wife

The bench of Justice RMT Teekaa Raman and Justice PB Balaji thus confirmed a family court order allowing dissolution of marriage finding that the husband had treated the wife with cruelty by not treating her on par and equally with the second wife.

“Hence, we are of the considered view that the husband having not treated the first wife and the second wife equally and the plaintiff, who is the first wife has clearly demonstrated before the Court, the cruelties met out by her and the husband has failed to maintain the wife for two years and failed to discharge the matrimonial obligations for three long years,” the court said.

The court was hearing an appeal preferred by the husband against the order of the Tirunelveli Family Court dissolving the marriage. The wife had initially approached the court alleging that the husband and his mother were treating her with cruelty and after their newborn child died, the husband's sister abused her by saying that the husband would solemnize another marriage.

She had also informed that she was subjected to physical and mental cruelty and unable to bear the same, she came to her parent's home. She had also submitted that when the husband failed to maintain her, she had preferred a maintenance claim which was allowed in her favour, and a Domestic complaint to bring back her jewels and household articles. During this time, the husband had filed a plea for restitution of conjugal rights which was allowed after which he married another lady.

The husband denied the allegations and submitted that merely because he married another woman, the wife could not seek the relief of divorce. He submitted that he was paying the maintenance amount and though he tried for a compromise, the wife refused and thus she was not entitled for any relief.

The court noted that the husband had failed to perform his marital obligations for more than three years and had also not taken any steps or measures to execute the decree for restitution of conjugal rights. The court was convinced that the husband had treated first wife unequally and failed to maintain her though he was duty-bound to maintain her even while she was with her parents.

The court also observed that a Muslim woman had a right to live separately when a congenial atmosphere is not available in the matrimonial home.

Thus noting that there was no reason to interfere with the order of the Family court, the court dismissed the appeal and confirmed the order of the family court.

Counsel for the Petitioner: M/s.K.Abiya

Counsel for the Respondent: M/s.C.Jeya Indira Patel Legal Aid Counsel

Citation: 2023 LiveLaw (Mad) 410

Case Title: PK Mukmuthu Sha v PS Mohammed Afrin Banu

Case No: A.S.(MD)No.131 of 2023