'M' (husband) married 'W' (wife) on 30.0.1997 according to Muslim rites. Both are Muslims. On 28.7.1998, both of them were separated. Within 5 months of the separation 'M' got re-married. 'W' filed a suit against 'M' seeking dissolution of marriage ... In the reply filed by 'M', he took up the plea that he was willing to co-habit with 'W'... Whether in such circumstances, 'W' shall be entitled to a decree of divorce?

Question: 'M' (husband) married 'W' (wife) on 30.0.1997 according to Muslim rites. Both are Muslims. On 28.7.1998, both of them were separated. Within 5 months of the separation 'M' got re-married. 'W' filed a suit against 'M' seeking dissolution of marriage under Section 2 of the Dissolution of Muslim Marriage Act (8 of 1939) on the ground of cruelty on the part of 'M'. She has complained of physical and mental cruelty.

'W' was allowed to amend the petition to incorporate the additional act of cruelty, namely, the second marriage of 'M' which according to 'W' caused mental cruelty towards her. In the reply filed by 'M', he took up the plea that he was willing to co-habit with 'W' as well while continuing the second marriage and as a Muslim husband he could have more than one wife. Whether in such circumstances, 'W' shall be entitled to a decree of divorce? Decide to explain the legal position. [DJS 2007]

Find the question and answer of Muslim Law only on Legal Bites. ['M' (husband) married 'W' (wife) on 30.0.1997 according to Muslim rites. Both are Muslims. On 28.7.1998, both of them were separated. Within 5 months of the separation 'M' got re-married. 'W' filed a suit against 'M' seeking dissolution of marriage ... In the reply filed by 'M', he took up the plea that he was willing to co-habit with 'W'... Whether in such circumstances, 'W' shall be entitled to a decree of divorce?]

Answer

The dissolution of marriage may be either by the act of the husband or by the act of the wife. A husband may divorce his wife by repudiating the marriage without giving any reason. On the other hand, a wife cannot divorce the husband of her own accord. She can divorce the husband only where the husband has delegated such right to her or under an agreement. Under an agreement, a wife may divorce her husband either by Khula or Mubarat.

Before the passing of the Dissolution of Muslim Marriage Act 1939, a Muslim wife had no right to seek divorce except on the ground of a false charge of adultery by the husband (lian), insanity, or impotency of the husband. But the Dissolution of Muslim Marriage Act, 1939 now lays down several other grounds on the basis of any one of which, a Muslim wife may get her marriage dissolved by order of the court.

The Act came into force on the 17th of March 1939 and lays down the following grounds for divorce:

1. the whereabouts of the husband are unknown for a period of four years;
2. failure of the husband to provide for the maintenance of the wife for a period of two years;
3. sentence of imprisonment on husband for a period of seven years;
4. failure without reasonable cause to perform marital obligations;
5. importance of husband;
6. insanity of the husband;
7. repudiation of marriage by wife;
8. cruelty of husband; and
9. any other grounds recognized by Muslim law

Section 4 of the Act deals with the effect of apostasy from Islam on a married Muslim woman. It is submitted that the grounds are independent of each other, and a decree for dissolution of marriage can be made on proof of any one of them.

More than one wife

The facts of the present case are similar to K. Muhamma Hatheef v. Nishath, A.I.R. 2004 Ker 22, where the husband solemnized a second marriage within five months of separation from his first wife and was having a child from his second wife, this amounted to mental cruelty. The fact that the husband was willing to cohabit with the first wife while continuing the second marriage is no reason to deny divorce to the first wife on the ground of mental cruelty.

The court further observed that though bigamy is permitted as per Muslim Law under exceptional circumstances, such circumstances also have to be taken note of. At present, such circumstances do not exist. Not only that, even to have a second wife, certain conditions have to be satisfied by the husband, including the financial capacity, the physical capacity, and the capability to treat more than one wife without discrimination and give both of them equal conveniences and considerations in life. Even if the husband contends that he can treat both wives equitably and without discrimination, it is a human impossibility.

Moreover, if during the subsistence of a valid marriage, the husband had remarried another, necessarily, that will be mental cruelty towards the first wife, even though that is not the cruelty alleged in the petition. Merely because the husband was willing to cohabit with the first wife while continuing the second marriage, there was no reason to count out the wife, denying her a decree for dissolution of marriage.

Even if the husband contends that he can equitably treat both wives without discrimination, it is a human impossibility. If the wife is not willing to be a co-wife with another, she cannot be compelled to live with the husband in such circumstances.

In such circumstances, 'W' shall be entitled to a divorce decree from her husband.

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