Mohammedan Law - Polygamy - It is not permissible for a man to marry more than one woman if he apprehends that he will be dealing with them unjustly or that he will be failing in respecting their rights.

Summary: Under what circumstances can a Mohammedan marry more than one woman and necessity to make appropriate legislation regarding polygamy are the highlights of the Judgment;

Court held that it is not permissible for a man to marry more than one woman if he apprehends that he will be dealing with them unjustly or that he will be failing in respecting their rights and that it is a arbitrary unilateral power to inflict instant divorce and does not accord with Islamic injunctions and there is a necessity to make appropriate legislation on the subject.

Held: The permission to take more than one wife is made conditional, that is , he should be able to deal justly with all the wives. The prophet has permitted polygamy and has limited it to four. But it has been further ordained to deal with them justly in matters of food, dress, residence and cohabitation without discrimination, irrespective of whether one is rich or poor, high or low. It is not permissible for a man to marry more than one woman if he apprehends that he will be dealing with them unjustly or that he will be failing in respecting their righ ts. If he is able to fulfill his duties to three but not able to fulfill his duty towards the fourth, then the fourth marriage is prohibited for him. If he is able to fulfill his duties to two but not able to fulfill his duty towards the third, then the third marriage is prohibited for him. Likewise, if he is able to fulfill his duties to one but not able to fulfill his duty towards the second, then the second marriage is prohibited for him. Various authors and authoritative writings say that there cannot be any equality in love and affection since it will not be possible to maintain equality in those matters. This applies to sexual relationship also. A man who is not infatuated by one woman may be infatuated by another and the man cannot be blamed for such an attitude. The law regarding equality does not apply to him in this regard because it is beyond his capabilities. It is, therefore, clear that Quranic injunctions in the matter of dealing justly and fairly with all the wives is in matters of residence, food, cohabitation, dress etc. and not in love and affection. 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

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either divorced women or second, or third or fourth w ife 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. What is the status of the wife and children born in such marriages?  (paras. 9, 10 & 11)

Mohammedan Law - Polygamy - Arbitrary unilateral power to inflict instant divorce does not accord with Islamic injunctions - Necessity to make appropriate legislation on the subject.

The arbitrary unilateral power to inflict instant divorce does not accord with Islamic injunctions. The Holy Quran expressly prohibits a man to seek pretext for divorcing his wife, so long as she remains faithful and obedient to him. In the absence of serious and permissible grounds, no man can justify a divorce, either in the eye of religion or law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. The law administered in Muslim countries like Iraq is that the husband must satisfy the court about the reasons for the divorce. These provisions are intended to regulate, control and supervise the sanctity of marriage and divorce. By enacting such laws, an effec tive system is brought about for protecting society and women from indiscreet marriages and divorce. Even in the 21st century, though the practice of polygamy is allowed in the strict sense by Islam, there is no system or measures in India to supervise or control such indiscreet marriages and divorce. Ulemas, Khazis and Clergymen in India have not given their serious thoughts to this social problem nor have they chosen to appeal to the Government to make appropriate legislation on the subject. A legislation for setting up bodies at central and regional levels to regulate, control and supervise the sanctity of marriage and divorce is the need of the hour. (para.15)

1970 KLT 4; 1987 (1) KLT 747 (SC) = AIR 1987 SC 1103 &

2000 (2) KLT SN 53 (C.No.62) SC = AIR 2000 SC 1650     Referred to

E.S.M. Kabeer                                                                            For Appellant

J. Abhilash, A. Parvathy Menon & P. Sanjay                           For Respondents

M.P.M. Aslam                                                                              As Amicus Curiae   

JUDGMENT

Harun-Ul-Rashid, J.

Can a Muslim husband exercise his right of divorce indiscreetly? Can he marry more than one upto four at a time - is it an unbridled authority for him? If not, should Muslim women suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? These are some of the questions arising for consideration in this case.

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2. This appeal is directed against the order of the Family Court, Thrissur in O.P. No.1095 of 2006. The said Original Petition was filed by the respon dent/wife under S.2(ii), (iv) and (viii) (a) (d) and (f) of the Dissolution of Muslim Marriages Act, 1939 for dissolution of her marriage with the appellant. By the impugned order, the Family Court allowed the Original Petition. Hence, the appeal by the husband. The parties herein are referred to as petitioner and respondent as in the Original Petition.

3. The marriage between the petitioner and respondent was solemnised on 1.6.2002. Their only child is now aged five years. The petitioner/wife alleged that her husband and his family members behaved very cruelly towards her contrary to her expectations, that they ill treated her mentally and physically and misappropriated 46 sovereigns of gold ornaments which were given to her at the time of marriage. She further alleged that after two months' of the marriage, her father was forced to give Rs.50,000/- to the respondent/ husband for starting a garment shop and that the respondent/husband and his family members frequently ill treated her demanding more dowry and even asked her to leave the matrimonial home if more dowry was not paid. It is also pleaded in her petition for divorce that the respondent failed to perform his marital obligations, that he withdrew from co-habiting with her and also failed to maintain her and their child. According to the petitioner, her status in the matrimonial home was that of a housemaid. It is also pleaded by her that her husband is a man of means, that he is running a barber shop as well as a garment shop, that he has landed property and is getting a monthly income of Rs.15,000/- and inspite of that he is not willing even to satisfy the basic needs of the petitioner and the child. In paragraph 8 of the petition, it is pleaded that the respondent/husband has married another lady by name Regina. In para10 of the petition, she has stated that their relationship as husband and wife has irretrievably broken and that the respondent deliberately deserted her and the child. She has also stated that the failure on the part of the respondent/husband to perform his marital obligations and to maintain her and the child has also led to their separation which cannot be repaired or revived.

4. The respondent filed a detailed objection denying the averments contained in the petition. He denied having ill treated the petitioner demanding more dowry and also the misappropriation of gold ornaments given to her at the time of marriage. He also pleaded that the entire gold ornaments are still in her possession. He also stated that he used to maintain his wife and child. He denied that he is the proprietor of a barber shop and a garment shop. He also denied his monthly income as alleged by the petitioner. According to him, the petitioner/wife left the matrimonial home without any reason and that he is ready and willing to live with the petitioner and child and maintain them. He filed O.P. No.360 of 2004 before the Family Court, Thrissur for restitution of conjugal rights and O.P. No .614 of 2005 for custody of his child. It is further contended by him that he is not bound to maintain the petitioner/wife since she is living separately for no reason. The averment contained in paragraph 8 of the petition that the respondent has contracted a second marriage is not denied in the objection filed by him.

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5. S.2 of the Dissolution of Muslim Marriages Act deals with the grounds for a decree of dissolution of marriage. The Section reads as follows:

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:-

(i)   that the whereabouts of the husband have not been known for a period of four years;

(ii)  that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv)  that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v)   that the husband was impotent at the time of the marriage and continues to be so;

(vi)  that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the ma rriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

(viii)that her husband treats her with cruelty that is to say,--

(a)  habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill- treatment, or

(b)  associates with women of evil repute or leads an infamous life, or

(c)  attempts to force her to lead an immoral life, or

(d)  disposes of her property or prevents her exercising her legal rights over it, or

(e)  obstructs her in the observance of her religious profession or practice, or

(f)   if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

(ix)  on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law :

Provided that -

(a)  no decree shall be passed on ground. (iii) until the sentence has become final;

(b)  a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the court that he is prepared to perform his conjugal duties, the court shall set aside the said decree; and

(c)   before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the court within a period of one year

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from the date of such order that he has ceased to be impotent, and if the husband so satisfies the court within such period, no decree shall be passed on the said ground.”

The grounds for dissolution of marriage alleged in the petition are: (i) failure to provide maintenance to the wife for two years, (ii) failure to perform the marital obligations, (iii) subjecting the wife to physical and mental cruelty, (iv) depriving her of her property and (v) contracting a second marriage but not treating her equitably in accordance with the injunctions of the Quran.

6. Going by the pleading in the Original Petition, we find that there is sufficient foundation in the grounds raised for dissolution of marriage. 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 sufficient to grant a decree for dissolution of marriage.

7. Though the petitioner sought a decree for dissolution of marriage on different grounds under the Dissolution of Muslim Marriages Act, without adverting to any such ground, the Family Court granted divorce on the only reason that the respon dent/husband contracted a second marriage. The question now raised in this appeal is whether the wife is entitled to a decree of divorce for the only reason that the husband contracted a second marriage. If the reason stated by the Family Court is to be accepted, a Muslim man cannot marry more than once when his first marriage subsists. Apart from the religious and legal aspects of marriage, there is a social aspect also under Islamic law. Islamic law gives a high social status to the women after marriage. Restrictions are placed upon the unlimited polygamy of pre Islamic times and a controlled Polygamy is allowed. Prophet Mohammed both by example and precept, encouraged the status of marriage. The prophet restrained polygamy by limiting the maximum number of contemporaneous marriages and by making absolute equity towards all, obligatory on the man. It is worthy to note that the clause in the Quran which contains the permission to contract four contemporaneous marriages is immediately followed by an injunction which puts the preceding passage to its normal and legitimate dimensions. The former passage says that a man can marry two, three or four times, but not more. The subsequent lines declare that if the man cannot deal equitably and justly with all, he shall marry only one.

8. In India, polygamy is positively unlawful. It calls for a strong moral if not a religious factor to eradicate polygamy from among the Mussalmans. We have recognized the custom of drawing up a deed of contract of marriage containing a formal renunciation of the right on the part of the future husband to contract a second marriage during the existence of the

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first. On execution of such a contract, a Muslim wife as of right is entitled to enforce the terms.

9. True, Islam recognizes polygamy. The Holy Quran in Chapter 4 Verse 3 (Al Nisa'a - meaning “woman”) teaches as follows:

“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 that your right hands possess. That will be more suitable to prevent you from doing injustice.”

The permission to take more than one wife is made conditional, that is , he should be able to deal justly with all the wives. The prophet has permitted polygamy and has limited it to four. But it has been further ordained to deal with them justly in matters of food, dress, residence and cohabitation without discrimination, irrespective of whether one is rich or poor, high or low. It is not permissible for a man to marry more than one woman if he apprehends that he will be dealing with them unjustly or that he will be failing in respecting their rights. If he is able to fulfill his duties to three but not able to fulfill his duty towards the fourth, then the fourth marriage is prohibited for him. If he is able to fulfill his duties to two but not able to fulfill his duty towa rds the third, then the third marriage is prohibited for him. Likewise, if he is able to fulfill his duties to one but not able to fulfill his duty towards the second, then the second marriage is prohibited for him. This is what the Quranic verse establishes: “Marry two or three or four women of your choice. If you fear that you will not be able to do justice to them, then marry only one. Otherwise you accept those who are brought under your control as captives of war.” What has been commanded by God is external and possible equality in dealings.

10. Various authors and authoritative writings say that there cannot be any equality in love and affection since it will not be possible to maintain equality in those matters. This applies to sexual relationship also. A man who is not infatuated by one woman may be infatuated by another and the man cannot be blamed for such an attitude. The law regarding equality does not apply to him in this regard because it is beyond his capabilities. It is, therefore, clear that Quranic injunctions in the matter of dealing justly and fairly with all the wives is in matters of residence, food, cohabitation, dress etc. and not in love and affection.

11. 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 con cept 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

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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 an d 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. What is the status of the wife and children born in such marriages?

12. We find the Bhishmacharya of Indian judiciary V.R. Krishna Iyer, J. in his celebrated decision as early as in 1970 in Shahulameedu v. Subaida Beevi, reported in (1970 KLT 4) has referred to the very same situation in his inimitable style in the following terms:

“It follows from these passages that the Quranic 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 Quran enjoined monogamy upon Muslims and departure therefrom as an exception. That is why, in the true spirit of the Quran, 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, Pakistan, Iran, the Islamic Republics of the Soviet Union are some of the Muslim countries to be remembered in this context). A keen perceptio n of the new frontiers of Indian law hinted at in Art.44 of the Constitution is now necessary on the part of Parliament and the Judicature.

A. Yusuf Ali in his commentary on the Holy Quran has pointed out with reference to the original text, in its proper context, that the prophet first strictly limited the unrestricted number of wives of the “Times of Ignorance” to a maximum of four, provided you 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, the recommendation was understood to be towards the practice of monogamy. Mr. Justice Hidayatullah in his Introduction to Mulla's Principles of Mohammedan Law, 16th Edn, has approved of the modernisation of the family law of the Muslims including the abolition of polygamy.”

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13. In this context, we have noticed a piece of legislation in Pakistan. Muslim Family Laws Ordinance, 1961 (No.8 of 1961) (hereinafter referred to as “the Ordinance”) was issued to give effect to certain recommendations of the Commission on Marriage and Family Laws. S.6 of the Ordinance deals with polygamy and provides for appointing an Arbitration Council consisting of the Chairman and members. Sub-s.(1) of S.6 reads as follows:

“(1) No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted w ithout such permission be registered under this Ordinance.”

As per sub-s.(2) of S.6 of the Ordinance, for a person to contract another marriage, he shall apply to the Chairman in the prescribed manner together with the prescribed fee and shall state the reasons for the proposed marriage and whether consent of the existing wife or wives has been obtained. Sub-s. (3) mandates that the Arbitration Council constituted, if satisfied that the proposed marriage is necessary and just, grant the permission applied for. Sub-s. (4) directs the Arbitration Council to record its reasons for the decision and the aggrieved party can file a petition to the Appellate Authority. Sub-s. (5) of S. 6 stipulates that if a man contracts another marriage without the permission of the Arbitration Council, he shall pay immediately the entire amount of the dower due to the existing wife and if not paid shall be recoverable as arrears of land revenue and on conviction upon complaint be punishable with simple imprisonment which may extent to one year, or with fine which may extend to five thousand rupees, or with both.

14. Under sub-s. (1) of S. 7 of the Ordinance, any man who wishes to divorce his wife shall, after pronouncing talaq, give notice to the Chairman in writing of his having done so and shall supply a copy thereof to the wife. Sub-s. (2) of S. 7 provides that whoever contravenes the provisions of sub-s. (1) shall be punishable with simple imprisonment for a term which may extent to one year, or with fine which may extend to five thousand rupees, or with both. Other conditions are also stipulated in sub-ss.(3) to (6) of S. 7 of the Ordinance for effecting Talaq.

15. It is a well accepted view that the arbitrary unilateral power to inflict instant divorce does not accord with Islamic injunctions. The Holy Quran expressly prohibits a man to seek pretext for divorcing his wife, so long as she remains faithful and obedient to him. In the absence of serious and permissible grounds, no man can justify a divorce, either in the eye of religion or law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. The law administered in Muslim countries like Iraq is that the husband must satisfy the court about the reasons for the divorce. These provisions are intended to regulate, control and supervise the sanctity of marriage and divorce. By enacting such laws, an effective system is brought about for protecting society and women from indiscreet marriages and divorce. Even in the 21st century, though the practice of polygamy is allowed

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in the strict sense by Islam, there is no system or measures in India to supervise or control such indiscreet marriages and divorce. Ulemas, Khazis and Clergymen in India have not given their serious thoughts to this social problem nor have they chosen to appeal to the Government to make appropriate legislation on the subject. A legislation for setting up bodies at central and regional levels to regulate, control and supervise the sanctity of marriage and divorce is the need of the hour.

16. Explanation to S. 125(3) Cr.P.C. reads as follows:

“If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.”

The Supreme Court had occasion to consider a question which is relevant in this context in the decision reported in Subanu alias Saira Banu v. A.M. Abdul Gafoor (1987 (1) KLT 747 (SC) = AIR 1987 SC 1103). The Apex Court held that right has been conferred on the wife under the Explanation to S.125(3) Cr.P.C. to live separately and claim maintenance from the husband if he breaks his vow of fidelity and marries another woman or takes a mistress. The Explanation is of uniform application to all wives including Muslim wives whose husbands have either married another woman otherwise than in accordance with the teachings of Quran or taken a mistress. The Apex Court further held that in this connection, any offer to take the first wife back cannot be considered to be a bona fide offer unless the husband offers to set up a separate residence for her, for a husband who marries again cannot compel the first wife to share the conjugal home with the co-wife.

17. In the decision reported in Lily Thomas v. Union of India (2000 (2) KLT SN 53 (C.No.62) SC = AIR 20 00 SC 1650), the Apex Court held that inspite of the first marriage, a second marriage can be contracted by the husband under Mohammedan Law subject to certain religious restrictions. In para 61 of the judgment, Justice R.P. Sethi observed that Muslim Law is based upon a well recognized system of jurisprudence providing many rational and revolutionary concepts which could not be conceived by the other systems of Law in force at the time of its inception. It is further observed that the concept of Muslim law is based upon the edifice of Shariat and that Muslim Law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one and another though capacity to do justice between co-wives in law is condition precedent and that even under Muslim Law plurality of marriages is not unconditionally conferred upon the husband. It is also observed that the progressive outlook and wider approach of Islamic Law cannot be permitted to be squeezed and narrowed by unscrupulous litigants, apparently indulging in sensual lust sought to be quenched by illegal means, who apparently are found to be guilty of the commission of the offence under the law to which they belonged before their alleged conversion.

18. We appeal to all concerned within the community and the administrative authorities and the Government to study the problem faced by the helpless and destitute women and children and to bestow thoughts on the ways and means to alleviate such s ocial problems.

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19. Coming to the case on hand, we find that the reasons stated by the Family Court that the second marriage contracted by the respondent/husband and the refusal of the petitioner/wife to live with the husband on account of his second marriage are not by themselves sufficient grounds to grant a decree for dissolution of marriage under the Dissolution of Muslim Marriages Act. Refusal of the wife to share the conjugal home with the co-wife is justified for claiming maintenance. In such circumstances, it is the duty of the husband to set up separate residence for her. At the same time, we find that the petitioner/wife had pleaded several other grounds permissible under law for divorce. Inequitable treatment to one wife against the Quranic injunction gives rise to a tenable claim for divorce. The Family Court failed to examine whether the petitioner/wife was entitled to a decree for dissolution of marriage under any or all the heads for which there is sound foundation in the pleadings.

20. In the result, the order under appeal is set aside and the case is remanded to the Family Court, Thrissur for fresh disposal in accordance with law. There will be no order as to costs.

21. We place on record our deep appreciation for the strenuous efforts taken by Adv. Sri. M.P.M. Aslam as amicus curiae and for his valuable assistance. We would also like to make a special mention of the able assistance of Sri. E.S.M. Kabeer, learned counsel for the appe llant and Smt. A. Parvathi Menon, learned counsel for the respondent.

The Registry shall send a copy of this judgment to the Ministry of Law and Justice, Government of India, New Delhi, the Chief Secretary to the Government of Kerala, Thiruvananthapuram and the Chairman, Kerala State Wakf Board