Madras HC Denies Relief Of Restitution Of Conjugal Rights To Husband Who Remarried During Pendency Of Suit [Read Judgment]

The High Court of Madras recently refused to grant the relief of restitution of conjugal rights to a man who had remarried during the pendency of the suit.

“In the circumstances, it could not be unreasonable to hold that after the plaintiff-husband contracted second marriage, the appellant wife is reasonable and justifiable in staying away from her husband. This Court while bearing in mind, the right of the Muslim husband as to contract of marriage more than once, however, it has to be borne in mind that the decision in a suit for restitution of conjugal rights does not entirely depend upon the right of the Muslim husband. The Court should also consider whether it make it in-equitable for it to compel the wife to live with her husband. Our notions of law in that regard have to be held in such a way so as to bring them in confirmity with modern social condition (sic),” Justice RMT. Teekaa Raman observed.

The High Court was hearing an Appeal challenging an order passed by the Additional District Judge, Tirunelveli, wherein the Court had granted the relief of restitution of conjugal rights to the husband.

The wife had now approached the High Court, alleging cruelty by the husband, and contending that the lower Court should not have ignored the fact of the husband’s second marriage during the pendency of the suit solely on the ground that he was permitted to contract more than one marriage for the reason of him being a Muslim.

The Court accepted the contentions put forth by the wife and observed, “When the husband proceeds against for wife for restitution conjugal rights and also contracted second marriage during the pendency of the suit for restitution of conjugal rights and in the instant case, the wife also complained of physical cruelty to extract money, after 18 years of matrimonial life. Then the burden proof is on the plaintiff husband who takes a second wife to explain his action to prove that, his taking of a second wife involves no cruelty to the first wife, by adducing necessary evidence to that effect.”

“For instance, he may rebut the presumption of cruelty by proving that his second marriage took place on the suggestion of first wife otherwise the Court will presume that under modern social conditions that the action of the husband in taking second wife, during pendency of the suit for institution of conjugal rights involves cruelty to the first wife then it could be inequitable for the Court to ask the wife to live with such a husband,” it added.

The Court also refused to dismiss the testimony of the wife’s paternal aunt as being one of an interested witness, observing that in case of a matrimonial dispute, a relative is in a better position to depose on the circumstances.

The Court thereafter ruled in favour of the wife and observed, “On consideration of the evidence and the pleadings thereon coupled with the admission of the P.W.1 and the D.W.1, this Court finds that the action of the plaintiff husband is not bonafide and the fact that the plaintiff-husband has taken the second wife during the pendency of the suit also lead to the irresistible conclusion that he disqualified for a decree of restitution of conjugal rights and reasoning given by the lower Appellate Court is not sustainable in law.”