'B' a Muslim wife seeks dissolution of her marriage with 'A' on the ground that 'A' neglected to maintain her for a period of 2 years. In fact, 'B' had voluntarily left 'A', when 'A', brought a second wife. Decide the claim of 'B'.

Question: 'B' a Muslim wife seeks dissolution of her marriage with 'A' on the ground that 'A' neglected to maintain her for a period of 2 years. In fact, 'B' had voluntarily left 'A', when 'A', brought a second wife. Decide the claim of 'B'. [HJS 2010]

Find the question and answer of Muslim Law only on Legal Bites. ['B' a Muslim wife seeks dissolution of her marriage with 'A' on the ground that 'A' neglected to maintain her for a period of 2 years. In fact, 'B' had voluntarily left 'A', when 'A', brought a second wife. Decide the claim of 'B'.]

Answer

Section 2 in the Dissolution of Muslim Marriages Act, 1939 lays down the grounds for a decree for dissolution of marriage. According to Section 2(ii) of the Dissolution of Muslim Marriage Act, a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage when 'the husband has neglected or has failed to provide for her maintenance for a period of two years'.

Moreover, the Explanation appended to Section 125(3) of CrPC states that

"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."

A right has been conferred on the wife under this Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a mistress. It matters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress. Therefore, it cannot be said that his taking another wife will not entitle the wife to claim separate residence and maintenance. The explanation is of uniform application to all wives, including Muslim wives whose husbands have either married another wife or taken a mistress. In this regard, any offer to take the first wife back cannot be considered to be a bonafide offer, unless the husband offers to set up a separate residence for her, because a husband who marries again cannot compel the first wife to share the conjugal home with the co-wife.

Thus, irrespective of the husband's right under his personal law to take more than one wife, his first wife should be entitled to claim maintenance and separate residence if he takes a second wife. Hence, T is entitled to a decree of dissolution of marriage.

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