Contracting Second Marriage May Be Lawful For A Muslim Man But It Causes 'Enormous' Cruelty To First Wife: Patna HC

A bench of Justice Purnendu Singh further added 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.

These observations were made by the single judge while refusing anticipatory bail to one Irshad Kuraishi in connection with a complaint case registered for the offence punishable under Sections 323, 498A and 406/34 IPC and Sections 3 and 4 of the Dowry Prohibition Act.

The case in brief

The petitioner's bail application was heard, and he was granted pre-arrest bail in May on the condition that he would appear before the Court below within 3 weeks and file an affidavit stating that he was ready to live with the opposite party- no. 2, wife.

However, instead of filing such an affidavit, the petitioner-husband moved the Supreme Court against the Patna HC's judgment. The Top Court noted that the HC had not examined the case's merits and had passed a conditional impugned order.

Therefore, setting the same aside, the Apex Court remanded the matter to the High Court for fresh consideration.

It was the case of the opposite party no. 2 (wife) that her marriage with the petitioner-husband was solemnised in July 2021 according to Muslim rites and customs.

After a few days of marriage, the petitioner (husband) started demanding a gold chain and ring from her, and due to non-fulfilment of said demand, the accused persons, including the petitioner, started torturing her and subjected her to various sorts of cruelty followed by assault.

The complainant's parents tried to pacify the matter, but thereafter, the accused persons forcibly removed her from her matrimonial house and kept all her belongings and valuables. Hence, she filed the instant complaint against the petitioner.

On the other hand, it was the case of the petitioner-husband that his wife stayed in his house only for 15 days, and during that period she made no complaint regarding cruelty or assault.

Importantly, it was his further case that he had a suspicion that the complainant was pregnant before the marriage, which the petitioner had confirmed by getting her examined, and in the Ultrasound report, a 19 weeks and 4 days foetus was found in her womb.

Appearing before the Court, the wife denied the claims of the husband by stating that she was medically fit and she had never conceived.

She submitted that her husband had solemnised a second marriage, but she still wanted to live with the petitioner.

High Court's observations

After hearing the parties and examining the case records, the Court noted that it was undisputed that the petitioner had contracted a second marriage without divorcing his first wife, whom he had legally wedded.

In this regard, the Court stressed that while the Sheriat permits Muslims to contract more than one marriage, the Court added that merely because an act is lawful, it does not per se become justifiable in married life.

The Court also said that women, regardless of their religion and socio-economic conditions, detest their husbands contracting a second marriage.

Further, the Court took into account the “demeanour” and “conduct” of the petitioner, who, in the open court, in a loud voice, accepted that while he had not given 'talaq' (divorce) to the opposite party no.2, he doesn't want to live with her.

The Court also observed that in a high pitch, he made allegations that opposite party no. 2 was carrying a foetus of 19 weeks and 4 days at the time of marriage, however, he did not bring on record any evidence in this regard.

Against this backdrop, emphasising that the petitioner cannot be allowed to “play with the dignity and life” of a woman “at his own will” and considering the fact that in an interim application, he categorically stated that he is ready to go for one-time settlement, apparently in a bid to obtain bail from the Court, the Single judge dismissed his anticipatory bail plea.

Case title - Md. Irshad Kuraishi vs. State of Bihar

Citation: 2024 LiveLaw (Pat) 38

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