The Karnataka High Court (Justice Krishna Dixit and Justice P. Krishna Bhat) holds that though contracting a second marriage by a Muslim may be lawful, but is more often than not, causes enormous cruelty to the first wife justifying her claim for divorce .
“There is no dispute that Section 2 of the Dissolution of Muslim Marriages Act, 1939 recognizes ‘cruelty of conduct of the husband as a ground for the dissolution of marriage at the instance of aggrieved ‘woman married under Muslim law’. It needs to be stated that ‘marital cruelty’ as a concept, by its very nature defies definition; courts have emphasized that in the backdrop of spousal relationship, words, acts or conduct constituting cruelty are infinitely variable with the increasing complexities of modern life; no attempt at defining likely to succeed fully; merely because an act is lawful, it does not per se become justifiable in married life; for example, of course subject to all just exceptions, smoking and drinking are not unlawful; snoring too, is not, but still in certain circumstances they may amount to cruelty to a sensitive spouse; on the same analogy though contracting a second marriage by a Muslim may be lawful, but it more often than not, causes enormous cruelty to the first wife justifying her claim for divorce.” observes the High Court.
The High Court refers to and extracts from the judgment of Kerala High Court, Justice V.R. Krishna Iyer in Shahulameedu vs Subaida Beevi 1970 K.L.T. 4 on the right of a Muslim to practise polygamy under the Sheriat as follows: “It follows from these passages that the Koranic injunction has to be understood in the perspective of prevalent unrestricted polygamy and in the context of the battle in which most males perished, leaving many females or orphans and that the holy prophet himself recognised the difficulty of treating two or more wives with equal justice and, in such a situation, directed that an individual should have only one wife. In short, the Koran enjoined monogamy upon Muslims and departure therefrom as an exception. That is why, in the true spirit of the Koran, a number of Muslim countries have codified the personal law wherein the practice of polygamy has been either totally prohibited or severely restricted. (Syria, Tunisia, Morocco, Pakisthan, Iran, the Islamic Republics of the Soviet Union are some of the Muslim countries to be remembered in this context.)”
The High Court also refers to and extracts from the Judgment of the Kerala High Court in Saidali K.H. vs V. Saleena, Mat Appeal No. 94/2007 disposed on 22:10:2008 (Justice Harun Ul Rashid ) ““The practice of having more than one wife, though not totally prohibited, is discouraged by imposing stringent conditions making it almost impossible to keep more than one wife at a time. These stringent conditions were imposed on the man even during the life time of Prophet Mohammed. The concept of polygamy, limited to four, with restrictions was permissible during that time due to unavoidable facts and circumstances prevalent during the said period. Going by Quranic versions, permission to marry more than one woman, but not more than four was given at a time when there were lots of orphans, widows and captives of war who were unable to lead a dignified life and their strength was far more than the men which gave rise to social problems in the society. Appeal to the people to marry orphans, widows and captives of war was necessitated on account of social inequality, economic distress and like conditions to which women were put to suffer. The mandate issued by Prophet Mohammed was intended to save the destitute and to protect their belongings . Even after fifteen centuries, some people of our country seem to be very particular in following the aforesaid tenets of Islam unmindful as to whether such circumstances exist or not. People of the community contract more than one marriage mostly for their personal pleasure. There is no system in our country to ascertain and decide whether such persons are eligible to contract more than one marriage during the subsistence of the first marriage. We have seen women and children standing in the verandah of courts who are either divorced women or second, or third or fourth wife of such persons seeking maintenance from their husbands. Unrestricted freedom to marry women of their choice was enjoyed by men and subsequently to casually pronounce talaq according to their whims and fancies. The indiscreet conduct of such persons in marrying and keeping more than one wife is continuing without any restriction. Most of such marriages are illegal since they are against Quranic injunctions.”
The judgment of the Allahabad High Court in Itwari vs Smt. Asghari, AIR 1960 Allahabad 684 is referred and the relevant portion reproduced: “Muslim Law as enforced in India has considered polygamy as an institution to be tolerated but not encouraged, and has not conferred upon the husband any fundamental right to compel the first wife to share his consortium with another woman in all circumstances. A Muslim husband has the legal right to take a second wife even while the first marriage subsists, but if he does so, and then seeks the assistance of the Civil Court to compel the first wife to live with him against her wishes on pain of severe penalties including attachment of property, she is entitled to raise the question whether the court, as a court of equity, ought to compel her to submit to co-habitation with such a husband. In that case the circumstances in which his second, marriage took place are relevant and material in deciding whether his conduct in taking a second wife was in itself an act of cruelty to the first.“
The High Court also refers to 150 year old Privy Council judgement in Moonshee Bazloor Ruheem vs Shamsunnisa Begum (11 MIA 551) that “Indian law does not recognise various types of such as ‘Muslim’cruelty, ‘Christian’cruelty ‘Jewish’ cruelty, and so on, and the test of cruelty is based on the universal and humanitarian standards, that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health. The onus is on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first, and in the absence of cogent explanation the Court will presume under modern conditions that the action of the husband in taking a second wife involved cruelty to the first, and it would be inequitable for the Court to compel her against her wishes to live with such a husband.”
The High Court upheld the Judgment of the family court Vijayapura which decreed the first wife’s suit for dissolution marriage.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/339311/1/MFA201154-18-17-08-2020.pdf
MFA 201154/2018 disposed on 17 August 2020. Yusufpatel vs Ramjanbi
S.Basavaraj, Advocate, Daksha Legal. raj@dakshalegal.com
Daksha Legal 
Parliament and judiciary is in competition to protect the rights of Muslim women
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