A Division Bench of the Kerala High Court on Wednesday declared that courts must accept the assertions of a Muslim wife in a polygamous marriage that she had been treated inequitably by her husband in claims for divorce under Section 2(viii) (f) of the Dissolution of Muslim Marriages Act, 1939.

The Bench of Justice R. Basant and Justice M.C. Hari Rani gave the ruling while dismissing an appeal filed by a Muslim man against a single judge's verdict upholding the lower court's order for divorce on a petition filed by his wife.

The court held that in a claim for divorce under Section 2(viii) of the Act, it was the assertion of the woman that mattered. She was the best judge to decide whether she had been treated equitably or not. When it was admitted or proved that there had been a second marriage and when the wife asserted that she had been treated inequitably and that she would like to walk out of such a marriage, no court could fetter her right to quit the marriage.

Whether there was cross-examination or not, her assertions would have to be accepted. The Koran mandates that she must be ‘dealt with fairly and justly.' The Koran declares that it will be impossible for a husband to treat his wife fairly when there is ‘plurality of wives.' If she perceived the treatment to be unjust and inequitable, her assertions would have to be accepted totally.

The court pointed out that a Muslim husband had the right to walk out of the marriage unilaterally even in a monogamous marriage. “At least when faced with the ignominy of polygamy, the wife must on her assertions be able to secure an order through court to quit such marriage. Her assertions need not be tested on any other touchstone. It is, of course, true that Section 2 (viii)(f) of the Act does not recognise a polygamous marriage by itself as a ground for divorcé; but read reasonably, the provision concedes to the wife the right to walk out of the marriage if she is satisfied that she has not been treated equitably in such marriage.”

The Bench said the fact that she had “consented to a polygamous marriage, that she had lived with her co-wife happily for some time or that she had entered into a polygamous marriage with a ‘consciousness' that she would be a second wife were ‘all no effective defences' in a claim for divorce.

The judges observed that when it came to the unilateral right of the Muslim man to divorce his wife, he need not reveal intimate confidential details in the realm of privacy to any one including the court or an outsider. He could divorce her without making any allegations or without the intervention of courts. Mutual recriminations could be avoided.


Towards a progressive interpretation of IslamJanuary 11, 2013

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