Unequal Treatment Of Wives A Valid Ground For Divorce For Muslim Women: Kerala High Court

The Kerala High Court has recently ruled that the refusal of a Muslim man to perform his marital obligations with his first wife after a second marriage is a good ground for divorce. 

A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas in its order observed: 

"The refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which commands equal treatment of the wives if the husband contracts more than one marriage. In such circumstances, we have no hesitation to hold that the appellant-wife is entitled to get a decree of divorce on that ground also."

The Court further noted,

"If there exists a marriage with another lady during the subsistence of the previous marriage, the burden is on the husband to prove that he had treated both wives equitably in accordance with the injunctions of Quran."

The Bench was adjudicating upon an appeal filed by a Muslim woman aggrieved by an order of a Family Court which denied her a decree of divorce. 

She married the respondent herein in 1991 and had three children with him in wedlock. During his time abroad, the respondent contracted a marriage with another lady during the subsistence of their marriage.

In her petition for divorce, the grounds under Section 2(ii), 2(iv) and 2(viii) of the Dissolution of Muslim Marriages Act, 1939 were referred to. During the pleadings, Section 2(viii) (f) was also referred to. 

The Court noted that as per Section 2(ii), the wife is entitled to a divorce if the husband has neglected or failed to provide for her maintenance for a period of two years.

However, upon perusal of records, it was clear that the husband used to provide maintenance for the appellant while he was abroad, and thereby agreed with the Trial Court's finding on this ground.

Coming to the next ground, Section 2(iv) states that she is entitled to a divorce if the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.

The appellant had stated in the petition that from 21.02.2014 onwards, the respondent-husband stopped visiting her and this fact was not denied in the written statement. On the other hand, according to the respondent, he was forced to marry another lady for the reason that the appellant failed to co-operate with him on his physical needs.

"We are not persuaded to believe the version of the respondent in this regard. Three children were born in wedlock. Two of them got married. Absolutely, there was no evidence to show that the respondent was willing to cohabit with the appellant. That means, he failed to perform the marital obligations. The petition for divorce was filed in the year 2019. They were living separately at least for a period of five years prior to filing this petition. In such circumstances, we are of the view that the appellant made out a ground for divorce under Section 2(iv) of the Act."

The Court noted that the Family Court carried on an assumption that providing maintenance would be sufficient to prove that the husband performed marital obligations. This finding was found to be erroneous by the Bench and that it does not stand the scrutiny of the law. 

Finally, Section 2(viii) (a) and (f) states as follows:

"that the 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 (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran."

Since there was no cohabitation in the last 5 years, the Court found that the case of physical or mental cruelty could not be justified in the context of the Act. 

However, the respondent had not denied the averments regarding contracting second marriage. Staying away from the first wife for five years itself would show that he had not treated them equally. The respondent has no case that he lived with the appellant after 2014.

Noting that refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions, the Court found this a fit case for a divorce to be granted.

The appeal was thereby allowed and the trial court decision as set aside.  

The appellant was represented by Advocates C. Ijlal and Ummul Fida while the respondent was represented by Advocates T.P. Sajid and Shifa Latheef. 

Case Title: Ramla v. Abdul Rahuf

Click Here To Read/Download The Order