Unequal treatment of wives violative of Quranic injunctions, ground to grant divorce to Muslim wife: Kerala High Court

The Kerala High Court recently held that any refusal by a Muslim man to co-habit or perform marital obligations with his first wife, after a second marriage, violates Quranic injunctions and is a valid ground for divorce [Ramla v Abdul Rahuf]..A Division Bench of Justices A Muhamed Mustaque and Sophy Thomas observed that if there exists a marriage with another lady during the subsistence of the previous marriage, the burden is on the husband to prove that he had treated both wives equitably in accordance with the injunctions of Quran."The refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which command equal treatment of the wives if the husband contracts more than one marriage," the Court held..The judgment was delivered on an appeal filed by a woman against a family court decision which had dismissed her divorce petition.The petition had been filed on grounds enumerated under the Dissolution of Muslim Marriages Act of 1939, for divorce as the appellant and her husband are Muslims and were married in accordance with the applicable personal law.The two had gotten married in August 1991 and subsequently had three children together. However, when the husband was abroad, he married another woman during the subsistence of marriage with the appellant. .The High Court considered the application on four grounds and found as follows: .1. Section 2(ii) states “that the husband has neglected or has failed to provide for her maintenance for a period of two years”.The Court found that the husband had sent money to the appellants account on several occasions while he was residing abroad and concurred with the trial court on this ground..2. Section 2(iv) states “that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years".The appellant claimed that the husband stopped visiting her in 2014. This was conceded by him but he explained that he contracted second marriage as the appellant-wife allegedly refused to have a sexual relationship with him. The Court was not persuaded to believe the version of the husband in this regard as the couple had had three children and there was no evidence that the husband even wanted to co-habit with the appellant. "That means, he failed to perform the marital obligations...The Family Court carried on an assumption that providing maintenance would be sufficient to prove that the husband performed marital obligations. This finding, according to us, is erroneous and cannot stand the scrutiny of the law" the Court held..3. Section 2(viii) (a) states “that the 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"Since the couple had not resided together for five years before filing of divorce petition, and there was no cohabitation in that time, the Court rejected the claim of physical or mental cruelty..4. Section 2(viii) (f) states "that the husband treats her with cruelty that is to say- (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.”The refusal to cohabit and perform marital obligations with the appellant wife shows that the husband had not treated the two wives equally.The Court held that refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions.Therefore, the Court set aside the order of the family court and granted them a divorce..[Read Judgment]