The Muslim personal law called Shariat may permit polygamy but that cannot be a ground for a court of law to compel a woman to live with her husband who has filed a petition for restitution of conjugal rights and yet married another woman within four months of filing the case, the Madras High Court Bench here has held.
Justice RMT. Teekaa Raman passed the ruling while allowing a second appeal preferred by Kamirunnissa (name changed) of Tirunelveli in 2006 and pending in the Bench since then. The judge reversed an order passed by an additional district court in February 2004 in favour of the woman’s husband.
“This court, while bearing in mind the right of a Muslim husband to contract marriage more than once, should also bear in mind that the decision in a civil suit for restitution of conjugal rights does not entirely depend upon the right of the Muslim husband. The court should also consider whether it would be equitable to compel the wife to live with her husband.” he said. “Our notions of law in this regard have to be held in a way so as to bring them in conformity with modern social conditions. There is no law or a rule which can compel a court of law to always pass a decree in favour of a Muslim husband in a civil suit preferred by him for restitution of conjugal rights.” “A duty is cast upon to the court to find out whether it will be just and reasonable to grant the relief to the husband and whether the proved circumstances are such that it would be inequitable to do so for a Muslim woman,” the judge said after concurring with the submissions made by the appellant’s counsel D. Nallathambi. Further, pointing out that marrying another woman amounts to subjecting the first wife to cruelty, the judge said the rule would apply to Muslims too.
‘Woman justified’
“In the said circumstances, it could not be unreasonable to hold that after the plaintiff husband contracted second marriage, the appellant wife is justified in staying away from her husband,” the judge added.
Initially, her husband filed a guardianship petition seeking custody of their third daughter and withdrew it after the appellant agreed to return all household articles gifted by her father.
Thereafter, he had filed a petition for restitution of conjugal rights in 1999. The appellant’s paternal aunt had deposed before the trial court in favour of the appellant.
Though a Principal District Munsif in Tirunelveli accepted the evidence and dismissed the husband’s plea for restitution of conjugal rights in 2003, the Additional District Court had reversed the Munsif’s decree on the ground that her aunt was an interested witness.
Disagreeing with the decision taken by the first appellate court, Mr. Justice Raman said: “In a matrimonial dispute, only the relative can be in a better position to depose about what had happenned inside the four walls of the house and the lower appellate court, in my considered view, has committed an error in brushing aside the evidence of the paternal aunt.”
