The Madras High Court in the case PK Mukmuthu Sha v PS Mohammed Afrin Banu observed that although Islamic Law allowed a husband to have polygamous marriages, he was obligated to treat all the wives equally.
The bench comprising of Justice RMT Teekaa Raman and Justice PB Balaji in the case observed and confirmed a family court order wherein the court allowed the dissolution of marriage finding that the husband had treated the wife with cruelty by not treating her on par and equally with the second wife.
The court stated that this court is of the considered view that the husband having not treated the first wife and the second wife equally and the plaintiff, who is the first wife has clearly demonstrated before the Court, the cruelties met out by her and the husband has failed to maintain the wife for two years and failed to discharge the matrimonial obligations for three long years.
In the present case, the court was hearing an appeal preferred by the husband against the order of the Tirunelveli Family Court dissolving the marriage.
Therefore, the wife had initially approached the court wherein it is alleged that the husband and his mother were treating her with cruelty and after their newborn child died, the husband’s sister abused her by saying that the husband would solemnize another marriage.
She also informed to the court that she was being subjected to physical and mental cruelty and unable to bear the same, she came to her parent’s home.
It has also been submitted by her that when the husband failed to maintain her, she had preferred a maintenance claim which was allowed in her favour, and a Domestic complaint to bring back her jewels and household articles.
The husband filed the petition for restitution of conjugal rights which was allowed after which he married another lady.
The court observed that the husband denied the allegations and submitted that merely because he married another woman, the wife could not seek the relief of divorce.
Before the court, he submitted that he was paying the maintenance amount and though he tried for a compromise, the wife refused and thus she was not entitled for any relief.
The court noted that the husband had failed to perform his marital obligations for more than three years and had also not taken any steps or measures to execute the decree for restitution of conjugal rights. Thus, the said court was convinced that the husband had treated first wife unequally and failed to maintain her though he was duty-bound to maintain her even while she was with her parents.
It has also been observed by the court that a Muslim woman had a right to live separately when a congenial atmosphere is not available in the matrimonial home.
The court while considering the facts and circumstances of the case observed that there was no such reason to interfere with the order of the Family court, the court dismissed the appeal and confirmed the order of the family court.
The counsel, Advocate M/s. K. Abiya appeared for the Petitioner. The counsel, Advocate /s. C. Jeya Indira Patel Legal Aid Counsel represented the respondent.
