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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 82 of 2004()
1. ABDURAHIMAN 49 YEARS,
... Petitioner
Vs
1. KHAIRUNNESSA 43 YEARS,
... Respondent
For Petitioner :SRI.K.P.MUJEEB
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :01/03/2010
O R D E R
R. BASANT &
M.C. HARI RANI, JJ.
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Mat. Appeal No. 82 of 2004-E
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Dated this the 1st day of March., 2010
JUDGMENT
Basant,J.
How is the expression "does not treat her equitably in
accordance with the injunctions of the Quran" in Sec.2(viii)(f)
of the Dissolution of Muslim Marriages Act, 1939 (hereinafter
referred to as `the Act') to be understood in law? Whose
standards are to apply and prevail? Is it the partisan
standards of the polygamous husband to be followed? Is it
the cold objective standards of the court - an outsider, to be
followed? Or is it the assessment and evaluation of the
helpless wife to be reckoned as crucial? Should not that
expression consistent with the humane socialist commitment
of the constitution in favour of the helpless and hapless
receive a construction in favour of the wife in distress? Can
the expression be understood divorced of the core Islamic
Mat. Appeal No. 82 of 2004-E -: 2 :-
approach to life and marriage that marriage is an arrangement
to be enjoyed and not to be endured reckoning the same as
indissoluble? Should not the true perception of the right to life,
in all its dimensions, persuade a court to give the expression the
widest possible amplitude to liberate the wife in distress from
her demeaning status of a `sapathni' (co-wife) - wife-in-law
(husband's wife) is a crude translation, which she does not want
to suffer and endure? These disturbing questions vex us in this
appeal.
2. To the crucial and relevant vital facts first. Spouses
are the parties. They got married in 1980 in accordance with the
customary Muslim religious rites. Four children have been
begotten in the marriage. The wife was taken by the husband to
his place of employment abroad. She is an educated woman.
She was employed as a Teacher there and it is her case that she
has earned a total amount of Rs.10.52 lakhs while she was
employed there till 1993. As the husband lost his employment
abroad in 1993, the wife had to resign her employment and
return to India collecting her terminal benefits. They came back
to their native place and set up joint residence in a building. It
is the case of the wife that she was led to believe that the
property was purchased in her name using her earnings which
she had entrusted to her husband. Her gold ornaments and
Mat. Appeal No. 82 of 2004-E -: 3 :-
wedding gifts including currency were also taken by him for that
purpose. She realised later that she was taken for a ride and the
property was not purchased in her name. The fourth child was
conceived when they so started separate residence. The
attitude of the husband towards the wife started changing
thereafter and he started cruel behaviour against her. She was
relegated to a different house with only one bed room and
kitchen made available to her. He allegedly indulged in cruel
behaviour. He did not maintain her. He did not perform his
marital obligations. He indulged in physical cruelty against
her. To crown all other circumstances, he, a person aged above
40 years, notwithstanding his marriage with her and four
children born in the said wed-lock, contracted another marriage
and started residing with the second wife. According to the
petitioner/wife, he did not treat her equitably in accordance with
the injunctions of the Quran. It is, in these circumstances, that
she came to court with her application for divorce under Sec.2
(ii), (iv), (viii)(a) and (f) of the Act.
3. The husband resisted the prayer for divorce. He did
not admit the second marriage. He denied the allegations of
failure/omission to pay maintenance. He denied the allegation
that he had not performed his marital obligations. He denied
the allegation of physical cruelty. He did not explain why he
Mat. Appeal No. 82 of 2004-E -: 4 :-
married again. He did not specifically assert that he was
treating both his wives equally and equitably.
4. Parties went to trial on these contentions. The wife
examined herself as P.W.1. She examined a witness as P.W.2 to
prove the second marriage of her husband. That witness
marked Ext.A1 marriage certificate to prove the second
marriage. The husband examined himself as R.W.1. He did not
at that stage dispute the second marriage. In evidence, he took
up an interesting stand unsupported by his pleadings that he had
got married again with the consent of his first wife.
5. The court below by the impugned order found the wife
entitled to a decree for divorce as claimed. Accordingly, the
court below proceeded to pass the impugned order.
6. We are in this appeal primarily concerned with the
decree for divorce under Sec.2(viii)(f) of the Act. This Court
entertained a doubt as to the standards applicable regarding
equitable treatment of the wife in accordance with the
injunctions of the Quran. Counsel for the parties - Advocates
M/s. K.P. Mujeeb and Pushparajan Kodoth were heard. As this
Court felt the need for independent and unbiased assistance on
the question of law, this Court requested some other counsel to
offer assistance as amicus curiae. We have had the advantage
of hearing Advocates M/s. M.P.M. Aslam, K.I. Mayankutty
Mat. Appeal No. 82 of 2004-E -: 5 :-
Mather, P.K. Ibrahim, C.S. Dias, Rajith, V.G. Arun and others.
We place on record our appreciation for the assistance rendered
by the counsel.
7. The learned counsel for the appellant challenges the
decree for divorce under Sec.2(viii)(f) of the Act primarily on the
ground that there is no evidence of any inequitable treatment of
the wife contrary to the injunctions of the Quran by the husband.
The wife had asserted so. Is that assertion sufficient? How is
the question to be considered and answered? What is the
nature of evidence that the court should look for and insist
before a polygamous marriage is ordered dissolved on the
grievance of the victim wife that she has not been treated
equitably by her husband. This is the crucial question to be
considered.
8. To answer the crucial and vital question, we feel that a
proper understanding of the concept of marriage in Islam, a
proper appreciation of the concept of marriage relevant to the
modern times and a proper appreciation of the impact of
constitutional socialism and the fundamental right to life will
have to be undertaken. The question cannot obviously be
decided sitting in an island circumscribed by the language of
Sec.2(viii)(f) of the Act.
9. Islam does not accept marriage as an indissoluble tie at
Mat. Appeal No. 82 of 2004-E -: 6 :-
all. In Islam marriage basically is a human contract. Though a
human contract, it has solemn significance also. Parties enter
matrimony voluntarily on their own free will. The dominant
purpose of marriage is the enjoyment of life by the spouses. The
spouses together must be able to enjoy life. Marriage in Islam is
not a cage where the parties who have entered have no key to
unlock the cage and liberate themselves even when the marriage
does not beget happiness. Islam in its dynamic liberalism and
humanism has always accepted the option of the spouses to get
the marriage dissolved. Modern notions about dissolubility of
marriage appear to have permeated into the Islamic thoughts
and law of marriage and divorce from ancient times. Centuries
back, this approach to marriage and divorce was conceived by
Islamic thought and vision of life. We are not unmindful of the
possibility of, and the actual misuse of, such liberal humanistic
provisions by unprincipled individuals who pay only lip service to
their faith in Islam. But the fact remains that Islam has
prescribed an easier, simpler and expeditious approach to the
idea of dissolution of marriage without intervention of courts and
authorities. The gender justice conscious modernist may
legitimately complain that the advantage of such easy procedure
for dissolution has not been made available to the female partner
in matrimony. Islam's was a universal message. The message
Mat. Appeal No. 82 of 2004-E -: 7 :-
emanated at a given point of time in history. It emanated from
a particular context in Arabia at a certain juncture of history.
The universal message did not express itself in a vacuum. The
divine message was expressed in a given language and at a
given point of time and geography. The quality of the antenna
which receives the message and the sublimity of the receiver of
the message is crucial in understanding the message. The
universal message was to transcend time and geography. But it
was to have relevance primarily in the societal context in which
the message was received and relayed. In a war ravaged society
with war widows, orphans and captives in abundance, the
message of the Lord was received and declared. In that society
at the relevant point of time, if a census were taken, the gender
proportion of the fertile population must certainly have been
grossly uneven. The male species, it must be realised was
heavily outnumbered on account of the war. It must, at any
rate, have been exceeding 1:2. The possibility of a wife wanting
a decree for divorce must have been rare in the societal context.
If hence emphasis was not laid on the right of a woman to get
advantage of easy dissolution of marriage, it cannot be reckoned
as gender bias of Islam against the fairer sex.
10. If there be any reservation about the gender justice of
Islam in marriage and divorce, we feel one should visit the story
Mat. Appeal No. 82 of 2004-E -: 8 :-
of Jameela which is referred to in at least two precedents as we
ascertained it. In Mohammed v. Sainaba Umma (1987 (1)
KLT 712) and Amma Khatoon v. Kashim Ansari (AIR 2001
Jharkhand 28) , the learned Judges have referred to the case of
Jameela. Thabit ibn Quais was the husband of Jameela.
Jameela approached the Prophet and claimed divorce from her
husband. She had no allegation to make against her husband.
He was not guilty of any contumaciousness in matrimony; but
she did not like him. For the simple reason that she did not like
his physical appearance, she wanted to claim divorce. She
complained to the Prophet that but for the fear of God she would
have struck him on the face whenever he approached her. The
Prophet ensured that she was done justice i.e., she got what she
deserved. It was ensured by the Prophet that her husband
divorced her.
11. No person researching into the gender justice
dimension of Islamic law in marriage and divorce can afford to
ignore social realities of the times and how the Prophet who
relayed the Lord's message to the universe, understood the
message. Jameela's story highlights that the liberal option to
walk out of a marriage when such marriage does not cater to
happiness and contentment was given not to the male species
alone; but to the female species also. An attempt to understand
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Islamic law cannot be undertaken without understanding the
core concept of Islam that the marriage is an institution to
facilitate enjoyment of life and if the institution does not cater to
enjoyment of life, the parties (the mates as they are referred to)
have the option to walk out of the same liberally without any
obligation to remain in chains in such unfortunate matrimony
which is not conducive to happiness and contentment. We have
adverted to this liberal humanist dimensions of the law of
marriage and divorce in Islam only to remind ourselves the mind
set with which we have to approach the task of understanding
the true meaning of the expression "does not treat her
equitably" in Sec.2(viii)(f) of the Act.
12. The concept of marriage being a sacramental
indissoluble tie which pervaded the Hindu and Christian law
relating to marriage and divorce does not hold water any longer
in the modern times as a dogma. It is here that we want to
remind ourselves of the true concept of marriage in the modern
liberal world. Winds of change are sweeping and the traditional
concept of indissolubility of marriage is shaking. That concept
has practically lost its sheen and fervor. Doctrine of
indissolubility is today, nothing but an unacceptable relic of the
past in the marriage laws. Marriage as an institution has totally
different purposes and incidents in the modern world. We need
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only reiterate with approval what one of us has already stated
in para-49 of Aboobacker v. Rahiyanath (2008 (3) KLT 482)
as to how the concept of marriage has to be understood now.
"Matrimony today is not merely an arrangement of convenience
for exhausting biological, physical and carnal urges without
offending the norms of morality of the given age. Spouses today
are not merely machines in the assembly line of production to
perpetuate the human race on this planet. Marriage today is not
merely a concession of the strong and more powerful male to the
women who outnumber men heavily in a war ravaged community
where war widows needing protection and safety are rampant.
Marriage today is not an arrangement between the master and a
slave or domestic maid hired for life for performing the domestic
chores of cooking, home management and rearing of children.
Matrimony as an institution in the modern era must be reckoned
as a serious dimension of the pursuit of the mission of life by
equal adult partners seeking perfection, completeness, harmony,
happiness and contentment in life. The pursuit has physical,
mental, intellectual and spiritual dimensions. Marriage in the
modern era can only be reckoned conceptually as an
arrangement of lasting friendship, partnership, mutual
complementarity, affection, love, support, caring and sharing
between two adult equal partners of different sex."
Mat. Appeal No. 82 of 2004-E -: 11 :-
13. The arrangement of marriage, being primarily and
predominantly the product of a voluntary decision of two adult
human beings who are parties to the arrangement, it can never
be forgotten that such human beings are likely to err in their
decision. Try as they might, they may not be able to make the
marriage work and find happiness and contentment in such
marriage. In such a situation to compel them to live and endure
the decision for the rest of their lives notwithstanding the
realization of the gross error in the decision may cater to the
requirements of a stable and sound concept about marriage in
society in yester years. But all societies and systems of
jurisprudence have now accepted that it is no virtue to live by
such a decision in perpetuity if the decision turns out to be
grossly erroneous. The option to walk out of matrimony
honestly must certainly be reckoned as an incident of the right to
life. Here again we need only reiterate what we had earlier
mentioned in para-37 of the the decision in Manoj C.V. v.
Vidhya (2010 (1) KHC 69) . The feeling of shame and guilt did
worry us as the system of which we are part has to share the
blame for the unfortunate plight of the young couple standing in
the long queue before courts one of whom wants liberation from
the marital tie and the inability of ours to grant them the time
that they need from us immediately. Their plight disturbed us.
Mat. Appeal No. 82 of 2004-E -: 12 :-
14. We hence disgressed and observed that: "Our
experience in this jurisdiction prompts us to think aloud on the
state of matrimonial law and procedure in our country. Right to
life under Article 21 of the Constitution must definitely include
the right to a healthy and harmonious matrimonial life. Marriage
as an institution becomes meaningless if it were to be endured
and not enjoyed. The right to opt out of an emotionally dead
marriage will have to, subject to the concerns of public order and
morality, be essentially accepted - tomorrow, if not today, as an
incident of the right to life. It will of course have to be secured
that the economically fragile divorced spouse is adequately
protected. Section 125 Cr.P.C., more than effectively discharges
this basic obligation in its fundamentals. Progressive
legislatures will certainly have to accept and recognise the
economic right of the marital partners to honourably divide
between them the wealth and assets acquired during coverture
at the time of termination of relationship. If these concerns are
properly addressed, a welfare socialist state cannot and must
not, we feel, hesitate to recognise the right of a spouse to
honourably walk out of an emotionally dead marriage with an
incompatible spouse. The enormity of the number of lives
involved inextricably in litigation for securing divorce , the
inevitable laws delays which contribute to the life of litigation
Mat. Appeal No. 82 of 2004-E -: 13 :-
and the loss of precious prime time in life of young spouses in
such complex litigation do all worry us and instill in us a deep
sense of dissatisfaction and frustration. Is marriage an
institution for imprisonment for life against the volition and
desire of individuals? If either party does not want to continue
matrimony can and should the system and laws compel him/her
to continue to endure such matrimony? Cannot individuals be
safely entrusted with the right to choose their own fate? Should
not marriage laws and the system realistically recognise that
compatibility is sine qua non for the success of the institution of
marriage? Should marriages dead de facto continue to live de
jure? If so for whose benefit? Are the children in a nuclear
family going to benefit in any manner by the continuance of such
a dead matrimony between warring parents? Nature or God
gives a person one opportunity to live in this stint of life and
should she/he not be permitted to so arrange his life as to pursue
happiness in a manner that is not opposed to public order and
morality? Should not spouses of unhappy marriages be
permitted to walk out of such marriages honourably and as
friends on the mere ground of incompatibility of temperament,
after the mandatory period of waiting, counselling and
conciliation? Are people going to walk out of solemn marriages
merely because law offers such opportunity to redeem
Mat. Appeal No. 82 of 2004-E -: 14 :-
themselves from dead marriages? The law maker and civil
society must address themselves to these disturbing questions
and come out with answers. We feel that it is the duty of the
Kerala legislature to lead the country on this aspect by bold and
innovative legislation? Has not our Kerala experience shown us
convincingly that easier and less cumbersome divorce laws do
not necessarily increase the incidence of divorce and that
marriages last longer in our culture not because the laws of
divorce are draconian but because of the essential culture and
attitude of the polity to marriage and family?"
15. Confirmed optimists we are, and we do believe that the
mandate of Art.44 of the Constitution that the State shall
endeavour to enact a uniform civil code for all Indians shall be
translated into reality at some point of time. When such a
uniform civil code comes into being, it is our ardent hope that
there shall be liberal borrowing from the concept of Islam about
easy, simpler, non-expensive, non-cumbersome and user friendly
procedure prescribed for unwilling spouses to walk out of such
dead marriage with honour, self-respect and dignity duly
providing for the economic security of the fragile partner of such
fractured marriage. Provision to quit marriage on the ground of
incompatibility after the mandatory period of waiting,
counselling and conciliation with accent on economic security of
Mat. Appeal No. 82 of 2004-E -: 15 :-
the partner will certainly be there in such uniform Civil Code, we
do hope.
16. Having thus adverted to the concept of marriage in
Islamic law and the modern concepts about marriage prevailing
now in our progressive society, we must advert to the
implications of the fundamental right to life in the controversy.
The interpreter has to be conscious of the nuances of the right to
life under Art.21 of the Constitution which has received a
revolutionary dimension at the hands of the Supreme Court. It is
unnecessary to advert to precedents. Right to life is not any
more merely a negative right which provides against the
arbitrary extinguishment of life. It includes the right to
meaningful life and life with dignity and self-respect. Art.13 of
the Constitution declares that no pre or post constitutional law
can be enforced within the territory of India if the same is
inconsistent with fundamental rights enshrined in Part III of the
Constitution. If such fundamental right to life is offended by any
such law, no such law can be enforced after the advent of the
constitution. While understanding Sec.2(viii)(f) of the Act the
dimension and nuances of the right to life under Art.21 have got
to be borne in mind. An argument is advanced that personal law
is out of bounds for Art.13. We have in paragraphs 18 to 27 of
the decision in Saumya Ann Thomas v. Union of India &
Mat. Appeal No. 82 of 2004-E -: 16 :-
Another (judgment dated 25/2/2010 in Mat. Appeal
No.20076/09) disagreed with this idea which finds expression in
the decision of the two Judge Bench of the Bombay High Court in
The State of Bombay v. Narasu Appa (AIR (39) 1952 Bombay
84). We have taken the view that the decision of Srikrishna
Singh v. Mathura Aahir & Others ((1981) 3 SCC 639) cannot
be held to have approved the dictum in Narasu Appa (supra).
We have expressed our opinion that the decision in Mathew &
Another v. Union of India (1999 (2) KLJ 824) deserves re-
consideration by a larger Bench. We have taken the firm view
as declared in the binding precedent of the Full Bench in Mary
Sonia Zachariah v. Union of India (1995 (1) KLT 644 (FB))
that so long as the impugned provisions are part of an Act it
must pass the test of constitutionality even if the provision is
based on religious principles. In these circumstances, we take
the view that we are dealing with a provision in a statute relating
to personal law and while interpreting the same also an
approach consistent with the right to life guaranteed under
Art.21 of the Constitution has to be adopted by courts.
Therefore, the constitutional perspective of the fundamental
right to life - i.e., the right to life with dignity and self-respect
must also inform us while trying to understand the true meaning
Mat. Appeal No. 82 of 2004-E -: 17 :-
of the expression "does not treat her equitably" in Sec.2(viii)(f)
of the Act.
17. We cannot afford to ignore the principles of
constitutional socialism declared in the preamble of the
Constitution. We approve and endorse what one of us has
already observed in para-49 of Aboobacker (supra) that
constitutional socialism is not a competing political ideology. If
it were so, the pluralist Indian Constitution may not have
declared its allegiance to such a political ideology in its
preamble. The development of humanism is recognized as one
of the fundamental duties of the Indian citizen in Art.51A(h) in
Chapter IVA of the Constitution. Humane humanism is the
bedrock of Indian Constitutional socialism. It transcends politics
and political ideology. It declares the commitment of the
republic to the cause of the less fortunate, the under privileged,
the marginalized and the suffering. This preambular
commitment of the Indian State is to show commitment to the
weak, concern for the underprivileged and loyalty to the
marginalized. All the limbs of the State, be it the law maker,
the law enforcer or the law interpreter/adjudicator cannot afford
to ignore this fundamental preambular commitment. All law
making, executive action and judicial interpretation/adjudication
is to lead the polity of Indian to the promised destination
Mat. Appeal No. 82 of 2004-E -: 18 :-
identified in the preamble. To wipe every tear from every eye,
the dream of the Mahatma - the Father of the Nation, is
encapsulated in this vision of constitutional socialism in the
preamble. While attempting to interpret the expression "does
not treat her equitably", this Court must remind itself of the
need for such commitment to humane humanism.- i.e.,
constitutional socialism.
18. Having so identified the mind set with which we must
approach the challenge of interpreting the expression "does not
treat her equitably" in Sec.2(viii)(f) of the Act, we shall now look
at the statutory provision closely. We extract Sec.2(viii)(f) of the
Act below:
"2. Grounds for decree for dissolution
of marriage.-- A woman married under Muslim
law shall be entitled to obtain a decree for the
dissolution of her marriage on any one or more
of the following grounds, namely.--
x x x x x x x x
x x x x x x x x
x x x x x x x x
(viii) that the husband treats her with
cruelty, that is to say:-
x x x x x x x x x
x x x x x x x x x
x x x x x x x x x
Mat. Appeal No. 82 of 2004-E -: 19 :-
(f) if he has more wives than one, does not
treat her equitably in accordance with the
injunctions of the Quaran."
19. What impresses (or to put it more honestly, disturbs)
us at the very outset is that the provision accepts polygamy.
Whether polygamy is constitutional and can stand the test of
Art.21 of the Constitution is a question that looms large.
20. Polygamy is permitted, tolerated and accepted and
enforced by the Indian courts only because the Muslim Personal
Law (Shariat) Application Act, 1937 mandates that the Muslim
Personal Law (Shariat) which permits polygamy has to be
followed by the Indian courts. The stipulation regarding
polygamy is therefore accepted and enforced as permitted and
mandated under the Shariat Act, 1937. In that view of the
matter, the law permitting polygamy will also have to pass the
test of constitutionality under Art.13. We have already adverted
to this aspect in some detail in another judgment that we
pronounced recently (see paras-17 to 27 of our judgment dated
25/2/2010 in W.P.(c) No.20076/09 Saumya Ann Thomas v. Union
of India which deals with this aspect). We are not called upon in
this case to undertake that question - of the constitutionality of
otherwise of law permitting polygamy. We need only note that it
will be necessary for us to give an interpretation to the
expression "does not treat her equitably" in accordance with the
Mat. Appeal No. 82 of 2004-E -: 20 :-
right to life guaranteed under Art.21of the Constitution.
21. To us, it appears that the said question deserves careful
consideration. We have already held that a stipulation in a piece
of statutory personal law is also bound to pass the test of
constitutionality under Art.13 of the Constitution. We have
expressed the opinion that even when it is not a piece of
statutory personal law it will have to be reconsidered whether
such piece of personal law declared by religion should also
stand the test of constitutionality under Art.13. Be that as it
may, the question whether polygamy offends the right to life
under Art.21 is definitely a question that has to be considered by
the polity and civil society in this country. Despite the
unequivocal mandate of Art.44, in spite of elapse of a period of
63 years of independence and 60 years of existence as a secular
republic and despite the directions of the Supreme Court in
various precedents including Sarla Mudgal v. Union of India
(AIR 1995 SC 1531), the Parliament has not moved an inch
forward in this direction. The courts also despite the dynamic
interpretation of Art.21 have not been called upon to, or at least
they have not embarked so far on that course, to decide whether
polygamy permitted or tolerated by Indian law offends the
fundamental right to life of a Muslim woman. How long can the
Parliament and judiciary avoid their duty/obligation to tackle this
Mat. Appeal No. 82 of 2004-E -: 21 :-
bull by the horns? If the system with its commitment to core
constitutional values has to be honest and true to itself, sooner if
not later, the legislature and the judiciary will certainly have to
consider the said question honestly and true to the core values of
the Indian Constitution.
22. Sec.2(viii) (f) of the Act provides an escape route for a
married woman who finds a third person intruding into the space
of matrimony which has place only for two. Marriage, according
to the well accepted modern concept, is a space which can
accommodate only two and not three or more. On account of
various compulsions, bigamy has been tolerated by different
cultures of the world and India, as the boiling pot of cultures, has
also permitted and tolerated the same so far. While bigamy has
been proscribed for the followers of all other religions, the
provisions in Islamic law permitting polygamy remain
untouched. The right of the Muslim husband to have more than
one (upto four) wives must be considered in the light of the
axiomatic assumption that in matrimony there is sufficient space
only for two. If a third one barges in and one within the
matrimony is unwilling to accommodate the third, the unwilling
second must have the option to walk out. This is the principle
which Sec.2(viii) (f) of the Act unmistakably recognizes. This
principle is expressed in the language that the wife can seek
Mat. Appeal No. 82 of 2004-E -: 22 :-
dissolution of her marriage on the plea that her husband `has
not treated her equitably' in accordance with the injunctions of
the Quran.
23. We note specifically the language employed by the
legislature. We note that the section insists on equitable and not
equal treatment of the wives in a polygamous marriage. Equal
treatment of all wives - but not equitably, is no defence in a claim
for divorce under Sec.2(viii)(f). We must dispel the impression at
the earliest that the mandate is only for "equal treatment" of all
wives. Equitability is the crux of the matter. Significantly, the
equitable treatment is to be done "in accordance with the
injunctions of the Quran". The primary source of Muslim law is
the Quran. There are subsidiary sources also. It is significant
that Sec.2(viii)(f) of the Act wants the wife to be treated
"equitably" in accordance with the injunctions of the Quran and
not "in accordance with the tenets of muslim law". A conscious
and deliberate stipulation that injunctions of the Quran are to be
taken into consideration and not any subsidiary sources of the
Muslim Law is, according to us, clearly decipherable from the
language of Sec.2(viii)(f) of the Act. An attempt to justify
treatment as equitable on the basis of any subsidiary sources of
Muslim Law does not appear to be permitted or tolerated in the
light of the clear language of the law. This stipulation is in tune
Mat. Appeal No. 82 of 2004-E -: 23 :-
with the principles of Islamic Law. The modern notions of the
institution of marriage and constitutional imperatives must also
inform this Court while interpreting the statutory provision.
24. What are the Quranic injunctions? This is the next
question to be considered. We have been assisted well by the
counsel on this aspect. It is the common case that two Ayats
of Sura IV relate to Quranic injunctions about equitable
treatment. The first one is Ayat 3 of Sura IV. We extract the
same below:
"If ye fear that ye shall not
Be able to deal justly
With the orphans,
Marry women of your choice,
Two, or three, or four;
But if ye fear that ye shall not
Be able to deal justly (with them),
Then only one, or (a captive)
That your right hands possess.
That will be more suitable,
To prevent you
From doing injustice."
We may straight away note the commentary by Yusuf Ali to this
Ayat.
"The unrestricted number of wives of
the "Times of Ignorance" was now strictly
limited to a maximum of four, provided you
Mat. Appeal No. 82 of 2004-E -: 24 :-
could treat them with perfect equality, in
material things as well as in affection and
immaterial things. As this condition is most
difficult to fulfill, I understand the
recommendation to be towards monogamy."
(emphasis supplied)
This stipulation permitting marriage of a man with two, three or
four women appears in the conditional clause about orphans.
This rule regarding marriage is seen introduced while speaking
about the duties to the orphans. The very foundation of
tolerated polygamy in Islam is that the husband must be able
to deal justly with plurality of wives. If he is unable to do so only
one marriage is permitted for him. The religious foundation of
Sec.(viii)(f) of the Act can be deciphered in Ayat 3 of Sura IV. If
a person shall not be able to deal justly with orphans, he has the
choice of marrying two , three or four women. But if he will be
unable to deal justly with them, he can marry only one. The
condition precedent for a polygamous marriage is the ability of
the husband to deal justly with all his wives. According to
Abdullah Yusuf Ali by way of material things as well as in
affection and immaterial things the husband must be able to
treat all his wives justly. If he is unable to do the same, the very
foundation of such polygamous marriage would vanish affecting
its legitimacy and continued validity.
Mat. Appeal No. 82 of 2004-E -: 25 :-
25. Having thus understood the Quaranic injunction in
Ayat 3 of Sura IV we now go to Ayat 129 of Sura IV:
"Ye are never able
To be fair and just
As between wives*
Even if it is
Your ardent desire:
But turn not away
(From a woman) altogether,
So as to leave her (as it were)
Hanging (in the air).
If ye come to a friendly
Understanding, and practise
Self-restraint, God is
Oft-forgiving, Most Merciful."
*(some translations show this as 'women')
26. To us it appears that Ayat 129 must give us the real
clue to interpret Sec.2(viii)(f) of the Act. It is the declaration of
God Almighty relayed to us by the Holy Prophet that no man
shall ever be able to be fair and just when he has plurality of
wives even if that be his ardent desire. This revelation accepts
an indisputable principle of life as perceived by ordinary and
mundane men and women. Yusuf Ali gives the following
commentary:
"In this material world there are two
principal causes of division between
Mat. Appeal No. 82 of 2004-E -: 26 :-
between man and wife, money and "the
other woman" or "the other man". Money
was dealt with in the last verse. Here is
the case of "the other woman". Legally
more than one wife (up to four) are
permissible on the condition that the man
can be perfectly fair and just to all. But
this is a condition almost impossible to
fulfil. If, in the hope that he might be able
to fulfil it, a man puts himself in that
impossible position, it is only right to insist
than he should not discard one but at least
fulfil all the outward duties that are
incumbent on him in respect of her."
27. In a polygamous marriage, the husband may try most
ardently to deal with his wives justly and equitably; but the Lord
declares through the Prophet that this shall be impossible,
however, earnestly one may try to do so. This declaration of
principle by the Lord through the Prophet is vital and crucial
while understanding Sec.2(viii)(f) of the Act and as to whose
standards must be adopted while interpreting the section.
28. We feel that it will not be inapposite in this context to
consider what Alla has ordained in Ayat 28 of Sura XXXIII. Alla
commands the Prophet and gives directions on the manner in
which the Prophet is to deal with his consorts. We extract Ayat
28 of Sura XXXIII below:
Mat. Appeal No. 82 of 2004-E -: 27 :-
"28. O Prophet! say
To thy Consorts:
"If it be that ye desire
The life of this world,
And its glitter,--then come!
I will provide for your
Enjoyment and set you free
In a handsome manner."
The Prophet is commanded to declare to his consorts that if they
are not willing to live the sublime life expected of them as the
Prophet's partners in matrimony he shall set them free from the
marital tie in a handsome manner. Yusuf Ali's commentary on
this Ayat shows that the consorts of the Prophet "are told here
that they had no place in the sacred Household if they merely
wished for ease or worldly glitter. If such were the case, they
could be divorced and amply provided for." The message
underlying this Ayat is also, according to us, eloquent. Where
the consorts are unable to find happiness in their married life
with the Prophet and find happiness elsewhere - i.e., in the life of
this world and its glitter, the male partner in matrimony is
commanded to offer to release them from marital tie to
enable/allow them to enjoy life as they choose to. While
considering the nature of the equitable treatment which Quran
commands and insists, this Ayat is also found to be of relevance.
Mat. Appeal No. 82 of 2004-E -: 28 :-
That was the standard which even a male partner like the
Prophet was commanded to follow.
29. It would be blasphemy for anyone to say that this
statement of the general principle - that however ardent the
husband may try he will not be able to be fair and just between
his wives, is incorrect. Ayat 3 of Sura IV states that if you shall
be able to deal with them justly you can marry two, three or four
wives. Ayat 129 of Sura IV declares that however ardently you
might try, this is impossible. The two have to be reconciled. It
can only mean that there may be situations, as existed in Arabia
at the relevant time that wives may be able to feel contentment,
security and safety under one husband when there are no
enough male persons to offer them such companionship
separately. There may be situations where on account of
compulsions women may be able to accommodate and tolerate
more than one under the umbrella of marriage satisfactorily.
Then and only then can such polygamous marriage be permitted.
30. According to us, this and this alone can be the true
interpretation of the words "treat her equitably in accordance
with the injunctions of the Quran". It is her assessment that
matters. It is not the assessment of the partisan husband who
notwithstanding the declaration of Ayat 129 may feel that he is
ardently attempting to do the same and is actually treating his
Mat. Appeal No. 82 of 2004-E -: 29 :-
wives equitably. His standards are not to be applied at all. His
egoistic assessment and evaluation about himself is irrelevant
and unconvincing.
31. Next question is whether it is the objective standards
of any other which should apply. While considering this, it must
be noted, and we have already referred to that aspect earlier,
that Islam has an extremely liberal modernism in its approach to
dissolubility of marriage. If one partner is unwilling to endure
the same, Islamic Personal Law does not seem to oblige such
partner to remain in matrimony without his/her full consent. It
is in this background that the Muslim woman's right to walk out
of a polygamous marriage has to be considered. That the fact
that the marriage is polygamous by itself is not recognized as a
ground under Sec.2(viii)(f) of the Act cannot alter our
conclusions. The underlying assumption definitely is that the
wife would like to continue in such a polygamous marriage only
if she finds happiness and contentment in such marriage.
Otherwise like Jameela in the story narrated above she can
approach the authority and get her marriage dissolved. What
we intend to note is that it is her response that matters. It is for
her to decide whether she is satisfied that her husband is
treating her equitably in accordance with the injunctions of the
Quran. Quran entitles her to be treated justly. Quran itself
Mat. Appeal No. 82 of 2004-E -: 30 :-
declares that it is impossible for a man however ardent his desire
be, to deal fairly and justly with more wives than one. This
clearly means that if the wife is not satisfied about the treatment
given to her by her husband in a polygamous marriage she can
assert that she has not been treated equitably and can walk out
of marriage on that assertion. One of the reasons why Islam has
a liberal attitude towards dissolution when it comes to the
unilateral right of the husband to divorce a wife, is that he need
not reveal intimate confidential details in the realm of privacy to
any one including the court/outsider. He can divorce her without
making any allegations and without intervention of courts. Dirty
linen need not be washed in public. Mutual recriminations can
be avoided. The relationship can be terminated honourably and
the parties can part as friends. The same yardstick can apply
when the woman chooses to terminate the polygamous marriage
by resort to Sec.2(viii)(f) of the Act. She may feel that her
husband is not physically treating her equitably. She may feel
that he does not care about satisfying her physically and
mentally. She may observe finer details of such inequitable
treatment. In the scheme of the Islamic law she is not obliged to
reveal to anyone such intimate and intricate details of unjust and
inequitable behaviour to her. She can assert that she has been
treated inequitably by her polygamous husband. That would
Mat. Appeal No. 82 of 2004-E -: 31 :-
entitle her to call it a day and quit such polygamous marriage.
Islam in its humane liberalism and dynamism did concede such
right to walk out of marriage to women like Jameela. It must be
so in a case where the husband has admitted another into
matrimony and the wife feels aggrieved by her unenviable
position as a co-wife. Even if we adopt the standards of a
reasonably prudent person who has imbibed Islamic liberalism
and humanism as also the sublimity of modern approach to the
institution of marriage, such person is bound to go only by the
perception and response of the woman in distress about the
equitability of her husband's treatment of her in the polygamous
marriage and he would not impart his own standards to decide
the controversy.
32. From the point of view of the right to life also this
appears to be the only proper interpretation possible. Even an
adulterous relationship is antithetic to a healthy marriage. As
we noted earlier, there is no space for a third person in
matrimony. To permit another to share the matrimonial bed
with her husband; to have only half or 1/3rd or 1/4th of a husband
for herself to live with - that is to share her husband with one,
two or three others; to be perpetually in competition with
another for the love, affection and attention of her own husband;
to have a running rival like a shadow every moment of the day
Mat. Appeal No. 82 of 2004-E -: 32 :-
and night to snatch away the time for personal intimacies with
her husband; to suffer in silence the ignominy when her
husband goes after another woman ignoring her - is all, to put it
mildly, the gross negation of the right to live; to live a
meaningful life with dignify, self- respect and honour. Such a
life is not a meaningful life. It is not a life with dignity. It is a
life of perpetual agony and suffering. No woman with self-
respect is likely to choose to suffer such ignominy. If the law
obliges a woman to suffer such misery perpetually and lead a
demeaning life, that would be negation of the right to life. From
the point of view of the right to life, we are satisfied that the
right to divorce under Sec.2(viii)(f) of the Act deserves to be
given the widest possible meaning and content to enable a wife
to escape and liberate herself from such a marriage which is
contrary to the very fundamentals of marriage in the modern
era.
33. From the point of view of the suffering of such a
woman, we must give a meaning and interpretation to Sec.2(viii)
(f) of the Act which shall help us to wipe the tear of such a
woman. It would be anachronistic, unjust and unfair for a Judge
with commitment to the core values of humanism underlying the
constitution not to perceive the suffering of such a woman. He
must give interpretation for Sec.2(viii)(f) of the Act in a manner
Mat. Appeal No. 82 of 2004-E -: 33 :-
that shall enable such wife to put an end to her sufferings in
such miscalled matrimony.
34. We do, in these circumstances, take the view that in a
claim for divorce under Sec.2(viii)(f) of the Act, it is the assertion
of the woman that matters. She is the best Judge to decide
whether she has been treated equitably or not. When it is
admitted or proved that there has been a second marriage and
when the wife asserts that she has been treated inequitably and
she would like to walk out of such marriage, no court can fetter
her rights to quit such marriage. Whether there is cross-
examination or not on such assertion of hers, her assertion will
have to be accepted. She is the best Judge of the situation.
Quran mandates that she must be dealt with fairly and justly.
Quran declares that it will be impossible for a husband to treat
his wife fairly and justly where there is plurality of wives. Her
assertion of inequitable treatment is consistent with the Lords
declaration in Ayat 129 of Sura IV. It would be unreasonable for
the rational, and blasphemous for the faithful, to question the
wisdom of the Lords declaration relayed to us by the prophet in
Ayat 129 of Sura IV. Hence, if she perceives the treatment to be
unjust and inequitable, her assertion will have to be totally
accepted.
Mat. Appeal No. 82 of 2004-E -: 34 :-
35. Tested on the constitutional mandate of equality also
we find this construction has to be followed. The husband has a
right to unilaterally walk out of marriage - even a monogamous
marriage. At least when faced with the ignominy of polygamy,
the wife must on her assertion be able to secure an order
through court to quit such marriage. Her assertion need not be
tested on any other touch stone. It is, of course, true that Sec.2
(viii)(f) of the Act does not recognize a polygamous marriage by
itself as a ground for divorce; but read reasonably, the provision
concedes to the wife a right to walk out of marriage if she is
satisfied that she has not been treated equitably in such
marriage.
36. We feel that the message must go loud and clear.
When the husband unlocks the wicket (or is it the wicked) gate
to admit another wife into matrimony, he passes on the password
to open the main exit gate to the wife in matrimony as also the
wife walking in. Either can thereafter, sooner or later, if she so
chooses, go to the main exit gate and utter the words
"inequitable treatment" and the gate shall open for her to go out
leaving her husband behind with all obligations of a divorced
husband to his divorced wife.
37. We must hasten to observe that the fact that she had
consented to a polygamous marriage; that she had lived with her
Mat. Appeal No. 82 of 2004-E -: 35 :-
co-wife happily for some time or even that she had walked into
such a polygamous marriage as the subsequent wife with
consciousness that she was only going to be a second wife in a
polygamous marriage are all no effective defences in a claim for
divorce on the ground under Sec.2(viii)(f) of the Act. She cannot
be estopped from claiming divorce on the ground Sec.2(viii)(f)
of the Act if she perceives after such marriage, at any point of
time that the husband has treated her inequitably.
38. Without pronouncement on the constitutional validity
of the stipulation relating to polygamy now on the touch stone of
Arts.21 and 13 of the Constitution , we must hold that such a
liberal interpretation of the words "does not treat her equitably"
is necessary to give true meaning and content to the right to life
of a woman caught in a polygamous marriage. The threat of
losing the wife in hand must deter the husband definitely from
inviting others to join him in matrimony.
39. We shall now consider how precedents have dealt with
the question. Various decisions have been placed before us. We
feel it unnecessary to advert to all of them. We shall refer to
only three decisions. The first one is a decision by the learned
Single Judge of the Allahabad High Court reported in Itwari v.
Asghari (AIR 1960 Allahabad 684). The learned single Judge
has observed that:
Mat. Appeal No. 82 of 2004-E -: 36 :-
"A Muslim has the undisputed legal right
to take as many as four wives at a time.
But it does not follow that Muslim Law in
India gives no right to the first wife against
a husband who takes a second wife, or that
this law renders her helpless when faced
with the prospect of sharing her husband's
consortium with another woman."
40. Relying on precedents the learned Judge had observed
that:
"the second marriage is not a single but a
continuing wrong to the first wife".
The learned Judge has gone further to observe that it is not
correct to contend that the first wife is not entitled to consider
the second marriage as an act of cruelty against her. The Indian
law does not recognize various types of cruelty such as Muslim
cruelty, Christian cruelty, Hindu cruelty and so on and the test
of cruelty is based on 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.
Referring to the ground for divorce under Sec.2(viii)(f) of the
Act, the learned single Judge observed that:
"It is but a short step from this
principle to ask the husband who has taken
it into his head to have a second wife
Mat. Appeal No. 82 of 2004-E -: 37 :-
during the subsistence of the first
marriage to explain the reasons for this
conduct and in the absence of a convincing
explanation, to conclude that there is little
likelihood of the first wife receiving
equitable treatment from him."
Discussing the importing of a second wife into the household,
the learned Judge observed that:
"It leads to the asking of awkward
questions, the raising of unsympathetic
eyebrows and the pointing of derisive
fingers at the first wife who is
automatically degraded by society. All this
is likely to prey upon her mind and health if
she is compelled to live with her husband
under the altered circumstances."
Referring to the circumstances under which inequitability may
result in a polygamous marriage, the learned Judge observed
that:
"Today Muslim women move in society, and it is impossible
for any Indian husband with several wives to cart all of them
around. He must select one among them to share his social life,
thus making impartial treatment in polygamy virtually impossible
under modern conditions. Formerly, a Muslim husband could
bring a second wife into the household without necessarily
meaning any insult or cruelty to the wife."
Mat. Appeal No. 82 of 2004-E -: 38 :-
The learned Judge further observed that:
"Under the prevailing conditions the
very act of taking a second wife, in the
absence of a weighty and convincing
explanation, raises a presumption of
cruelty to the first."
The learned Judge finally proceeded to observe that:
"The onus today would be 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. For example, he may rebut the
presumption of cruelty by proving that his
second marriage took place at the
suggestion of the first wife or reveal some
other relevant circumstances which will
disprove cruelty."
Those visionary observations made by the learned Judge - Justice
S.S.Dhavan of the Allahabad High Court in 1960 are all the
more relevant in the present day context after elapse of a period
of about 50 years. Those observations are consistent with our
conclusion that the court can today depend on the perception of
the wife in distress to decide whether there has been inequitable
treatment or not.
41. We now refer to the decision of a Division Bench of this
Court in K. Muhamma Latheef v. Nishath (2003 (1) KLT 877).
Mat. Appeal No. 82 of 2004-E -: 39 :-
Unambiguous observations were made that:
"If during the subsistence of a valid
marriage the husband had remarried
another, necessarily, that will be a mental
cruelty towards the first wife, even though
that is not the cruelty alleged in the
petition. Merely because the appellant was
willing to cohabit with the respondent
while continuing the second marriage,
there was no reason to court out the
respondent, denying her a decree for
dissolution of marriage."
42. The most crucial observations, according to us, appear
later as follows:
"Even if the appellant contends that
he can equitably treat both the wives
without discrimination, it is a human
impossibility. x x x x x x x x If the
respondent is not willing to be a co-wife
with another for the appellant, she cannot,
in such circumstances, be compelled to live
with the appellant."
The message we feel is absolutely clear from the decision in K.
Muhamma Latheef (supra). The above observations of Hon'ble
Mr. Justice Abdul Gaffoor support our conclusions.
43. Our attention has been drawn to the decision in Saidali
v. Saleena (2008 (4) KLT 885). Relying on the said decision, it
Mat. Appeal No. 82 of 2004-E -: 40 :-
is contended that the court had taken the view that the admitted/
proved second marriage and the refusal of the first wife to
cohabit cannot by itself be reckoned as a reason to order divorce
under Sec.2(viii)(f) of the Act. We are unable to agree that such
a rigid proposition of law is laid down in Saidali. Saidali
(supra) does not refer to the earlier Division Bench in K.
Muhamma Latheef (supra). If there be any conflict between
the observations in the two, certainly K. Muhamma Latheef
(supra) must prevail, that being the earlier decision and the
latter having made no reference to it at all. More over, it must
be noted that the observations in Saidali (supra) were
conditioned by the relevant facts in that case. In para-6 the facts
scenario is narrated. We extract para-6 below":
"6. Before the Family Court, the
respondent admitted the fact of having
contracted a second marriage on 9/4/2006.
The Family Court did not post the case for
evidence, but decided the case on
25/1/2007 holding that since the second
marriage is admitted by the respondent/
husband, the petitioner/wife is entitled to a
decree of divorce. The Family Court also
held that the respondent/husband having
married again, the petitioner/wife was not
willing to join him and that the said fact is
Mat. Appeal No. 82 of 2004-E -: 41 :-
sufficient to grant a decree for dissolution
of marriage."
(emphasis supplied)
This means that sufficient assertions were there in the petition;
but there was no evidence available before the court in Saidali.
The assertion of the wife on oath about inequitable treatment
was not there. The court had not taken any decision and had
only sent back the matter to the court below for a fresh decision
in accordance with law after adducing evidence. On the dictum
that we propose to lay down which in its crux is only that the
assertions of the wife must be accepted when she states that her
husband in a polygamous marriage is not treating her equitably,
no principle of law contra has been laid down in Saidali (supra).
That decision was only dealing with the need for statutory
modification of polygamy permitted/tolerated by Muslim law.
On the crucial question, no decision was taken and the matter
was only sent back to the court below for fresh decision. We
may observe that Saidali unfortunately did not refer to K.
Muhamma Latheef (supra). It did not also refer to the
commentary by Yusuf Ali that the wives in a polygamous
marriage are entitled to equality and equitability not only in
material things but also in affection and immaterial things. What
is marriage without affection, love and intimacy was not
considered by the Bench in Saidali. Marriage sans affection,
Mat. Appeal No. 82 of 2004-E -: 42 :-
love and intimacy would be a perverse misnomer. It will be no
marriage at all. When the Lord ordained that the wives must be
treated fairly and justly, it cannot be assumed that the reference
was to clothing, shelter and other material things. Lord in His
wisdom would not have said in Ayat 129 that it would be
impossible to deal with plurality of wives justly and fairly despite
the ardent desire of the husband if so narrow and constricted
were the mandate of such fair and just dealing with wives. We
must note that Saidali did not resolve any question of law but
did only remand the matter for evidence and fresh disposal as
the court had not even posted the case for evidence. If
assertions of the wife on oath about inequitable treatment were
there, we would assume that the Bench would have granted
relief in Saidali to the hapless wife.
44. Having so understood the law we come back to the
facts of the instant case. We note that the second marriage
though not honestly admitted initially, is proved convincingly
and conceded reluctantly in the course of the proceedings. The
wife has asserted in the petition and in evidence that she was not
treated equally and equitably. The sum total of her evidence
shows unmistakably that she has not been treated equitably by
her polygamous husband. The court below has accepted the
same. We find no reason to disagree. We concur with the
Mat. Appeal No. 82 of 2004-E -: 43 :-
conclusion of the court below . The challenge against the order
of divorce under Sec.2(viii)(f) of the Act is thus rejected.
45. It is unnecessary to go into the other grounds of
divorce raised. We need only observe that we are satisfied that
the wife has been denied maintenance; that the husband has
failed to perform his marital obligations and that physical cruelty
has been inflicted on the wife. The impugned decree for divorce
under Sec.2(ii), (iv), and (viii)(a) of the Act are also thus found to
be absolutely justified. The challenge against them also fails.
46. In the result:
(a) This appeal is dismissed.
(b) We declare that in a claim for divorce under Sec.2
(viii)(f) of the Act, the assertion of the wife in a
polygamous marriage that she has been treated
inequitably by her husband must be accepted by the
court.
(c) The impugned order is upheld. The appellant shall
pay costs to the respondent throughout.
47. Before parting with this case we must note that
notwithstanding the availability of such a foolproof case, the wife
has been compelled to remain waiting from 2003. This is
unfortunate. At least the claims under Sec.2(viii)(f) of the Act
Mat. Appeal No. 82 of 2004-E -: 44 :-
deserve to be disposed of quickly and expeditiously - nay
instantly, by the courts. All claims in which such a claim under
Sec.2(viii)(f) of the Act is made must be disposed of by the court
as expeditiously as possible.
48. The Registry shall place the matter before the
Committee concerned to consider issue of specific directions in
the form of a Circular to achieve the above end.
49. We again place on record our appreciation for the
able assistance rendered to us by the learned counsel and our
gratitude to the amicus curiae whose time in abundance we had
demanded.
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