{"id":172957,"date":"2008-10-22T00:00:00","date_gmt":"2008-10-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/saidali-k-h-vs-v-saleena-on-22-october-2008"},"modified":"2018-05-27T21:10:29","modified_gmt":"2018-05-27T15:40:29","slug":"saidali-k-h-vs-v-saleena-on-22-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/saidali-k-h-vs-v-saleena-on-22-october-2008","title":{"rendered":"Saidali K.H. vs V.Saleena on 22 October, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Saidali K.H. vs V.Saleena on 22 October, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMat.Appeal.No. 94 of 2007()\n\n\n1. SAIDALI K.H., S\/O HASSAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. V.SALEENA, D\/O ABOOBACKER,\n                       ...       Respondent\n\n                For Petitioner  :SRI.ESM.KABEER\n\n                For Respondent  :SRI.J.ABHILASH\n\nThe Hon'ble MR. Justice KURIAN JOSEPH\nThe Hon'ble MR. Justice HARUN-UL-RASHID\n\n Dated :22\/10\/2008\n\n O R D E R\n           KURIAN JOSEPH & HARUN-UL-RASHID, JJ.\n           -----------------------------------------------------------------\n                      MAT. APPEAL NO. 94 OF 2007\n           -----------------------------------------------------------------\n                  Dated this the 22nd day of October, 2008\n\n                                  JUDGMENT\n<\/pre>\n
Harun-Ul-Rashid, J.\n<\/p>\n<\/p>\n
       Can a Muslim husband exercise his right of divorce indiscreetly?<\/p>\n
Can he marry more than one upto four at a time – is it an unbridled<\/p>\n
authority for him? If not, should Muslim women suffer this tyranny for<\/p>\n
all times? Should their personal law remain                so cruel towards these<\/p>\n
unfortunate     wives?      These are some of the questions arising for<\/p>\n
consideration in this case.\n<\/p>\n<\/p>\n
      2. This appeal is directed against the order of the Family Court,<\/p>\n
Thrissur in O.P. No.1095 of 2006. The said Original Petition was filed by<\/p>\n
the respondent\/wife under Section 2(ii), (iv) and (viii) (a) (d) and (f) of the<\/p>\n
Dissolution of Muslim Marriages Act, 1939 for dissolution of her marriage<\/p>\n
with the appellant. By the impugned order, the Family Court allowed the<\/p>\n
Original Petition. Hence, the appeal by the husband. The parties herein<\/p>\n
are referred to as petitioner and respondent as in the Original Petition.<\/p>\n
Mat. Appeal No.94\/2007                2<\/span><\/p>\n
      3.     The marriage between the petitioner and respondent was<\/p>\n
solemnised on 1.6.2002. Their only child is now aged five years. The<\/p>\n
petitioner\/wife alleged that her husband and his family members behaved<\/p>\n
very cruelly towards her contrary to her expectations, that they ill treated<\/p>\n
her mentally and physically and misappropriated 46 sovereigns of gold<\/p>\n
ornaments which were given to her at the time of marriage. She further<\/p>\n
alleged that after two months’ of the marriage, her father was forced to give<\/p>\n
Rs.50,000\/- to the respondent\/husband for starting a garment shop and that<\/p>\n
the respondent\/husband and his family members frequently ill treated her<\/p>\n
demanding more dowry and even asked her to leave the matrimonial home<\/p>\n
if more dowry was not paid. It is also pleaded in her petition for divorce<\/p>\n
that the respondent failed to perform his marital obligations, that he<\/p>\n
withdrew from co-habiting with her and also failed to maintain her and<\/p>\n
their child. According to the petitioner, her status in the matrimonial home<\/p>\n
was that of a housemaid. It is also pleaded by her that her husband is a<\/p>\n
man of means, that he is running a barber shop as well as a garment shop,<\/p>\n
that he has landed property and is getting a monthly income of Rs.15,000\/-<\/p>\n
and inspite of that he is not willing even to satisfy the basic needs of the<\/p>\n
petitioner and the child. In paragraph 8 of the petition, it is pleaded that<\/p>\n
the respondent\/husband has married another lady by name Regina. In<\/p>\n
Mat. Appeal No.94\/2007                 3<\/span><\/p>\n
paragraph 10 of the petition, she has stated that their relationship as<\/p>\n
husband and wife has irretrievably broken and that the respondent<\/p>\n
deliberately deserted her and the child. She has also stated that the failure<\/p>\n
on the part of the respondent\/husband to perform his marital obligations<\/p>\n
and to maintain her and the child has also led to their separation which<\/p>\n
cannot be repaired or revived.\n<\/p>\n<\/p>\n
      4. The respondent filed a detailed objection denying the averments<\/p>\n
contained in the petition.     He denied having ill treated the petitioner<\/p>\n
demanding more dowry and also the misappropriation of gold ornaments<\/p>\n
given to her at the time of marriage. He also pleaded that the entire gold<\/p>\n
ornaments are still in her possession.      He also stated that he used to<\/p>\n
maintain his wife and child. He denied that he is the proprietor of a barber<\/p>\n
shop and a garment shop. He also denied his monthly income as alleged<\/p>\n
by the petitioner.     According to him, the petitioner\/wife left the<\/p>\n
matrimonial home without any reason and that he is ready and willing to<\/p>\n
live with the petitioner and child and maintain them.        He filed O.P.<\/p>\n
No.360 of 2004 before the Family Court, Thrissur for restitution of<\/p>\n
conjugal rights and O.P. No.614 of 2005 for custody of his child. It is<\/p>\n
further contended by him that he is not bound to maintain the<\/p>\n
petitioner\/wife since she is living separately for no reason. The averment<\/p>\n
Mat. Appeal No.94\/2007                 4<\/span><\/p>\n
contained in paragraph 8 of the petition that the respondent has contracted<\/p>\n
a second marriage is not denied in the objection filed by him.<\/p>\n
      5. Section 2 of the Dissolution of Muslim Marriages Act deals with<\/p>\n
the grounds for a decree of dissolution of marriage. The Section reads as<\/p>\n
follows:\n<\/p>\n<\/p>\n
                    “Grounds for decree for dissolution of
\n             marriage:- A woman married under muslim law
\n             shall be entitled to obtain      a decree for the
\n             dissolution of her marriage on any one or more of
\n             the following grounds, namely :\n<\/p><\/blockquote>\n
                    (i)   that the whereabouts of the husband
\n             have not been known for a period of four years;\n<\/p><\/blockquote>\n
                    (ii)  that the husband has neglected or has
\n             failed    to provide for her maintenance for a
\n             period of two years;\n<\/p><\/blockquote>\n
                    (iii) that the husband has been sentenced
\n             to imprisonment for a period of seven years or
\n             upwards;\n<\/p><\/blockquote>\n
                    (iv)  that the husband       has failed to
\n             perform, without reasonable cause, his marital
\n             obligations for a period of three years;\n<\/p><\/blockquote>\n
                    (v)   that the husband was impotent at the
\n             time of the marriage and continues to be so;\n<\/p><\/blockquote>\n
                    (vi)  that the husband has been insane for
\n             a period of two years or is suffering from leprosy
\n             or a virulent venereal disease;\n<\/p><\/blockquote>\n
Mat. Appeal No.94\/2007                  5<\/span><\/p>\n
                    (vii) that she, having been given in
\n             marriage by her father or other guardian before
\n             she attained the age of fifteen years, repudiated
\n             the marriage before attaining the age of eighteen
\n             years:\n<\/p><\/blockquote>\n
                    Provided that the marriage has not been
\n             consummated;\n<\/p><\/blockquote>\n
                    (viii) that her husband treats her with
\n             cruelty that is to say,–\n<\/p><\/blockquote>\n
                    (a)    habitually assaults her or makes her
\n             life miserable by cruelty of conduct even if such
\n             conduct does not amount to physical ill-<\/p><\/blockquote>\n
\n             treatment, or\n\n                    (b)    associates with women of evil repute\n             or leads an infamous life, or\n\n                    (c)    attempts to force her      to lead an\n             immoral life, or\n\n                    (d)    disposes of her property or prevents\n             her exercising her legal rights over it, or\n\n                    (e)    obstructs her in the observance of\n             her religious profession or practice, or\n\n                    (f)    if he has more wives than one, does\n<\/pre>\n
             not treat her equitably in accordance with the
\n             injunctions of the Quran;\n<\/p><\/blockquote>\n
                    (ix)   on any other ground which is
\n             recognised as valid for the dissolution of
\n             marriages under Muslim Law :\n<\/p><\/blockquote>\n
             Provided that —\n<\/p><\/blockquote>\n
                    (a)    no decree shall be passed on ground\n<\/p><\/blockquote>\n
             (iii) until the sentence has become final;\n<\/p><\/blockquote>\n
Mat. Appeal No.94\/2007                  6<\/span><\/p>\n
                    (b)   a decree passed on ground (i) shall
\n             not take effect for a period of six months from the
\n             date of such decree, and if the husband appears
\n             either in person or through an authorised agent
\n             within that period and satisfies the court that he
\n             is prepared to perform his conjugal duties, the
\n             court shall set aside the said decree; and<\/p>\n<\/blockquote>\n
                    (c)   before passing a decree on ground\n<\/p><\/blockquote>\n
             (v) the Court shall, on application by the
\n             husband, make an order requiring the husband to
\n             satisfy the court within a period of one year from
\n             the date of such order that he has ceased to be
\n             impotent, and if the husband so satisfies the court
\n             within such period, no decree shall be passed on
\n             the said ground.”\n<\/p><\/blockquote>\n
The grounds for dissolution of marriage alleged in the petition are: (i)<\/p>\n
failure to provide maintenance to the wife for two years, (ii) failure to<\/p>\n
perform the marital obligations, (iii) subjecting the wife to physical and<\/p>\n
mental cruelty, (iv) depriving her of her property and (v) contracting a<\/p>\n
second marriage but not treating her equitably in accordance with the<\/p>\n
injunctions of the Qur’an.\n<\/p>\n<\/p>\n
      6. Going by the pleading in the Original Petition, we find that there<\/p>\n
is sufficient foundation in the grounds raised for dissolution of marriage.<\/p>\n
Before the Family Court, the respondent admitted the fact of having<\/p>\n
contracted a second marriage on 9.4.2006. The Family Court did not post<\/p>\n
the case for evidence, but decided the case on 25.1.2007 holding that since<\/p>\n
Mat. Appeal No.94\/2007                7<\/span><\/p>\n
the second marriage is admitted by the respondent\/husband, the<\/p>\n
petitioner\/wife is entitled to a decree of divorce. The Family Court also<\/p>\n
held that the respondent\/husband having married again, the petitioner\/wife<\/p>\n
was not willing to join him and that the said fact is sufficient to grant a<\/p>\n
decree for dissolution of marriage.\n<\/p>\n<\/p>\n
       7. Though the petitioner sought a decree for dissolution of marriage<\/p>\n
on different grounds under the Dissolution of Muslim Marriages Act,<\/p>\n
without adverting to any such ground, the Family Court granted divorce on<\/p>\n
the only reason       that the respondent\/husband contracted a second<\/p>\n
marriage. The question now raised in this appeal is whether the wife is<\/p>\n
entitled to a decree of divorce for the only reason that the husband<\/p>\n
contracted a second marriage. If the reason stated by the Family Court is<\/p>\n
to be accepted, a Muslim man cannot marry more than once when his first<\/p>\n
marriage subsists. Apart from the religious and legal aspects of marriage,<\/p>\n
there is a social aspect also under Islamic law. Islamic law gives a high<\/p>\n
social status to the women after marriage. Restrictions are placed upon<\/p>\n
the unlimited polygamy of pre Islamic times and a controlled Polygamy is<\/p>\n
allowed. Prophet Mohammed both by example and precept, encouraged<\/p>\n
the status of marriage. The prophet restrained polygamy by limiting the<\/p>\n
maximum number of contemporaneous marriages and by making absolute<\/p>\n
Mat. Appeal No.94\/2007                  8<\/span><\/p>\n
equity towards all, obligatory on the man. It is worthy to note that the<\/p>\n
clause in the Qur’an which contains the permission to contract four<\/p>\n
contemporaneous marriages is immediately followed by an injunction<\/p>\n
which puts the preceding            passage to its normal and legitimate<\/p>\n
dimensions. The former passage says that a man can marry two, three or<\/p>\n
four times, but not more. The subsequent lines declare that if the man<\/p>\n
cannot deal equitably and justly with all, he shall marry only one.<\/p>\n
       8. In India, polygamy is positively unlawful. It calls for a strong<\/p>\n
moral if not a religious factor to eradicate polygamy from among the<\/p>\n
Mussalmans.      We have recognized the custom of drawing up a deed of<\/p>\n
contract of marriage containing a formal renunciation of the right on the<\/p>\n
part of the future husband        to contract a second marriage during the<\/p>\n
existence of the first. On execution of such a contract, a Muslim wife as of<\/p>\n
right is entitled to enforce the terms.\n<\/p>\n<\/p>\n
       9. True, Islam recognizes polygamy. The Holy Qur’an in Chapter 4<\/p>\n
Verse 3 (Al Nisa’a – meaning “woman”) teaches as follows:<\/p>\n
                     “If ye fear that ye shall not be able to deal
\n              justly with the orphans marry women of your
\n              choice, two, or three or four; but if ye fear that ye
\n              shall not be able to deal justly with them, then<\/p>\n
Mat. Appeal No.94\/2007                 9<\/span><\/p>\n
              only one or that your right hands possess. That
\n              will be more suitable to prevent you from doing
\n              injustice.”\n<\/p><\/blockquote>\n
The permission to take more than one wife is made conditional, that is , he<\/p>\n
should be able to deal justly with all the wives. The prophet has permitted<\/p>\n
polygamy and has limited it to four. But it has been further ordained to<\/p>\n
deal with them justly in matters of food, dress, residence and cohabitation<\/p>\n
without discrimination, irrespective of whether one is rich or poor, high or<\/p>\n
low. It is not permissible for a man to marry more than one woman if he<\/p>\n
apprehends that he will be dealing with them unjustly or that he will be<\/p>\n
failing in respecting their rights. If he is able to fulfill his duties to three<\/p>\n
but not able to fulfill his duty towards the fourth, then the fourth marriage<\/p>\n
is prohibited for him. If he is able to fulfill his duties to two but not able<\/p>\n
to fulfill his duty towards the third, then the third marriage is prohibited<\/p>\n
for him. Likewise, if he is able to fulfill his duties to one but not able to<\/p>\n
fulfill his duty towards the second, then the second marriage is prohibited<\/p>\n
for him.     This is what the Quranic verse establishes: “Marry two or<\/p>\n
three or four women of your choice. If you fear that you will not be<\/p>\n
able to do justice to them, then marry only one. Otherwise you accept<\/p>\n
those who are brought under your control as captives of war.” What<\/p>\n
has been commanded by God is external and possible equality in dealings.<\/p>\n
Mat. Appeal No.94\/2007                10<\/span><\/p>\n
      10. Various authors and authoritative writings say that there cannot<\/p>\n
be any equality in love and affection since it will not be possible to<\/p>\n
maintain equality in those matters.    This applies to sexual relationship<\/p>\n
also. A man who is not infatuated by one woman may be infatuated by<\/p>\n
another and the man cannot be blamed for such an attitude. The law<\/p>\n
regarding equality does not apply to him in this regard because it is beyond<\/p>\n
his capabilities. It is , therefore, clear that Qur-anic injunctions in the<\/p>\n
matter of dealing justly and fairly with all the wives is in matters of<\/p>\n
residence, food, cohabitation, dress etc. and not in love and affection.<\/p>\n
      11. The practice of having more than one wife, though not totally<\/p>\n
prohibited, is discouraged by imposing stringent conditions making it<\/p>\n
almost impossible to keep more than one wife at a time. These stringent<\/p>\n
conditions were imposed on the man even during the life time of Prophet<\/p>\n
Mohammed. The concept of polygamy, limited to four, with restrictions<\/p>\n
was permissible during that time due to unavoidable facts and<\/p>\n
circumstances prevalent during the said period.          Going by Quranic<\/p>\n
versions, permission to marry more than one woman, but not more than<\/p>\n
four was given at a time when there were lots of orphans, widows and<\/p>\n
captives of war who were unable to lead a dignified life and their strength<\/p>\n
was far more than the men which gave rise to social problems in the<\/p>\n
Mat. Appeal No.94\/2007              11<\/span><\/p>\n
society. Appeal to the people to marry orphans, widows and captives of<\/p>\n
war was necessitated on account of social inequality, economic distress<\/p>\n
and like conditions to which women were put to suffer. The mandate<\/p>\n
issued by Prophet Mohammed was intended to save the destitute and to<\/p>\n
protect their belongings . Even after fifteen centuries,   some people of<\/p>\n
our country seem to be very particular in following the aforesaid tenets of<\/p>\n
Islam unmindful as to whether such circumstances exist or not. People of<\/p>\n
the community contract more than one marriage mostly for their personal<\/p>\n
pleasure.   There is no system in our country to ascertain and decide<\/p>\n
whether such persons are eligible to contract more than one marriage<\/p>\n
during the subsistence of the first marriage. We have seen women and<\/p>\n
children standing in the verandah of courts      who are either divorced<\/p>\n
women or second, or third or fourth wife of         such persons seeking<\/p>\n
maintenance from their husbands. Unrestricted freedom to marry women<\/p>\n
of their choice was enjoyed by men and subsequently to casually<\/p>\n
pronounce talaq according to their whims and fancies.       The indiscreet<\/p>\n
conduct of such persons in marrying and keeping more than one wife is<\/p>\n
continuing without any restriction.    Most of such marriages are illegal<\/p>\n
since they are against Quranic injunctions. What is the status of the wife<\/p>\n
and children born in such marriages?\n<\/p>\n
Mat. Appeal No.94\/2007                 12<\/span><\/p>\n
       12. We find the Bhishmacharya of Indian judiciary V.R. Krishna<\/p>\n
Iyer J. in his celebrated decision as early as in 1970 in Shahulameedu v.<\/p>\n
Subaida Beevi, reported in 1970 K.L.T. 4 has referred to the very same<\/p>\n
situation in his inimitable style in the following terms:<\/p>\n
                    “It follows from these passages that the
\n             Koranic injunction has to be understood in the
\n             perspective of prevalent unrestricted polygamy
\n             and in the context of the battle in which most
\n             males perished, leaving many females or orphans
\n             and that the holy prophet himself recognised the
\n             difficulty of treating two or more wives with
\n             equal justice and , in such a situation, directed
\n             that an individual should have only one wife. In
\n             short, the Koran enjoined monogamy upon
\n             Muslims     and    departure    therefrom   as  an
\n             exception. That is why, in the true spirit o the
\n             Koran, a number of Muslim countries have
\n             codified the personal law wherein the practice of
\n             polygamy has been either totally prohibited or
\n             severely restricted.    (Syria, Tunisia, Morocco,
\n             Pakistan, Iran, the Islamic Republics of the
\n             Soviet Union are some of the Muslim countries
\n             to be remembered        in this context).  A keen
\n             perception of the new frontiers of Indian law
\n             hinted at in Art. 44 of the Constitution is now
\n             necessary on the part of Parliament and the
\n             Judicature.\n<\/p><\/blockquote>\n
                    A. Yusuf Ali in his commentary on the
\n             Holy Quran has pointed out with reference to the
\n             original text, in its proper context, that the
\n             prophet first strictly limited the unrestricted
\n             number of wives of the “Times of Ignorance” to a
\n             maximum of four, provided you could treat them
\n             with perfect equality in material things as well as
\n             in affection and immaterial things.        As this<\/p>\n
Mat. Appeal No.94\/2007                13<\/span><\/p>\n
             condition is most difficult to fulfill, the
\n             recommendation was understood to be towards
\n             the practice of monogamy.             Mr. Justice
\n             Hidayatullah in his Introduction to Mulla’s
\n             Principles of Mahomedan Law, 16th Edn, has
\n             approved of the modernisation of the family law
\n             of the Muslims including the abolition of
\n             polygamy.<\/p><\/blockquote>\n
      13. In this context, we have noticed a piece of legislation in<\/p>\n
Pakistan.      Muslim Family Laws Ordinance, 1961 (No.8 of 1961)<\/p>\n
(hereinafter referred to as “the Ordinance”) was issued to give effect to<\/p>\n
certain recommendations of the Commission on Marriage and Family<\/p>\n
Laws. Section 6 of the Ordinance deals with polygamy and provides for<\/p>\n
appointing an Arbitration Council consisting of the Chairman and<\/p>\n
members. Sub-section (1) of Section 6 reads as follows:<\/p>\n
                    “(1) No man, during the subsistence of an
\n             existing marriage, shall, except with the previous
\n             permission in writing of the Arbitration Council,
\n             contract another marriage, nor shall any such
\n             marriage contracted without such permission be
\n             registered under this Ordinance.\n<\/p><\/blockquote>\n
As per sub-section (2) of Section 6 of the Ordinance, for a person to<\/p>\n
contract another marriage, he shall apply         to the Chairman in the<\/p>\n
prescribed manner together with the prescribed fee and shall state the<\/p>\n
reasons for the proposed marriage and whether consent of the existing<\/p>\n
Mat. Appeal No.94\/2007                14<\/span><\/p>\n
wife or wives has been obtained. Sub-section (3) mandates that the<\/p>\n
Arbitration Council constituted, if satisfied that the proposed marriage is<\/p>\n
necessary and just, grant the permission applied for.       Sub-section (4)<\/p>\n
directs the Arbitration Council to record its reasons for the decision and<\/p>\n
the aggrieved party can file a petition to the Appellate Authority. Sub-<\/p>\n
section (5) of Section 6 stipulates that if a man contracts another marriage<\/p>\n
without the permission of the Arbitration Council, he shall pay<\/p>\n
immediately the entire amount of the dower due to the existing wife and if<\/p>\n
not paid shall be recoverable as arrears of land revenue and on conviction<\/p>\n
upon complaint be punishable with simple imprisonment            which may<\/p>\n
extent to one year, or with fine which may extend to five thousand rupees,<\/p>\n
or with both.\n<\/p>\n<\/p>\n
      14. Under sub-section (1) of Section 7 of the Ordinance, any man<\/p>\n
who wishes to divorce his wife shall, after pronouncing talaq, give notice<\/p>\n
to the Chairman in writing of his having done so and shall supply a copy<\/p>\n
thereof to the wife. Sub-section (2) of Section 7 provides that whoever<\/p>\n
contravenes the provisions of sub-section (1) shall be punishable with<\/p>\n
simple imprisonment for a term which may extent to one year, or with fine<\/p>\n
which may extend to five thousand rupees, or with both. Other conditions<\/p>\n
are also stipulated in sub-sections (3) to (6) of Section 7 of the Ordinance<\/p>\n
Mat. Appeal No.94\/2007                15<\/span><\/p>\n
for effecting Talaq.\n<\/p>\n<\/p>\n
       15. It is a well accepted view that the arbitrary unilateral power to<\/p>\n
inflict instant divorce does not accord with Islamic injunctions. The Holy<\/p>\n
Qur’an expressly prohibits a man to seek pretext for divorcing his wife, so<\/p>\n
long as she remains faithful and obedient to him. In the absence of serious<\/p>\n
and permissible grounds, no man can justify a divorce, either in the eye of<\/p>\n
religion or law. If he abandons his wife or puts her away in simple<\/p>\n
caprice, he draws upon himself the divine anger, for the curse of God, said<\/p>\n
the Prophet, rests on him who repudiates his wife capriciously. The law<\/p>\n
administered in Muslim countries like Iraq is that the husband        must<\/p>\n
satisfy the court about the reasons for the divorce. These provisions are<\/p>\n
intended to regulate, control and supervise the sanctity of marriage and<\/p>\n
divorce. By enacting such laws, an effective system is brought about for<\/p>\n
protecting society and women from indiscreet marriages and divorce.<\/p>\n
Even in the 21st century, though the practice of polygamy is allowed in the<\/p>\n
strict sense by Islam, there is no system or measures in India to supervise<\/p>\n
or control such indiscreet marriages and divorce. Ulemas, Khazis and<\/p>\n
Clergymen in India have not given their serious thoughts to this social<\/p>\n
problem nor have they chosen to appeal to the Government to make<\/p>\n
appropriate legislation on the subject. A legislation for setting up bodies<\/p>\n
Mat. Appeal No.94\/2007                16<\/span><\/p>\n
at   central and regional levels to regulate, control and supervise the<\/p>\n
sanctity of marriage and divorce is the need of the hour.<\/p>\n
      16. Explanation to Section 125(3) Cr.P.C. reads as follows:<\/p>\n
                    “If a husband has contracted marriage with
\n              another woman or keeps a mistress, it shall be
\n              considered to be just ground for his wife’s refusal
\n              to live with him.”\n<\/p><\/blockquote>\n
The Supreme Court had occasion to consider a question which is relevant<\/p>\n
in this context in the decision reported in Subanu alias Saira Banu v.<\/p>\n
A.M. Abdul Gafoor, A.I.R.<\/a> 1987 S.C. 1103. The Apex Court held that<\/p>\n
right has been conferred on the wife under the Explanation to Section 125<\/p>\n
(3) Cr.P.C. to live separately and claim maintenance from the husband if<\/p>\n
he breaks his vow of fidelity and marries another woman or takes a<\/p>\n
mistress. The Explanation is of uniform application to all wives including<\/p>\n
Muslim wives whose husbands have either married another woman<\/p>\n
otherwise than in accordance with the teachings of Quran or taken a<\/p>\n
mistress. The Apex Court further held that in this connection, any offer to<\/p>\n
take the first wife back cannot be considered to be a bona fide offer unless<\/p>\n
the husband offers to set up a separate residence for her, for a husband<\/p>\n
who marries again cannot compel the first wife to share the conjugal<\/p>\n
Mat. Appeal No.94\/2007               17<\/span><\/p>\n
home with the co-wife.\n<\/p>\n<\/p>\n
      17. In the decision reported in Lily Thomas v. Union of India,<\/p>\n
A.I.R.<\/a> 2000 S.C. 1650, the Apex Court held that inspite of the first<\/p>\n
marriage, a second marriage can be contracted by the husband under<\/p>\n
Mohammedan Law subject to certain religious restrictions. In paragraph<\/p>\n
61 of the judgment, Justice R.P. Sethi observed that Muslim Law is based<\/p>\n
upon a well recognized system of jurisprudence providing many rational<\/p>\n
and revolutionary concepts which could not be conceived by the other<\/p>\n
systems of Law in force at the time of its inception. It is further observed<\/p>\n
that the concept of Muslim law is based upon the edifice of Shariat and<\/p>\n
that Muslim Law as traditionally interpreted and applied in India permits<\/p>\n
more than one marriage during the subsistence of one and another though<\/p>\n
capacity to do justice between co-wives in law is condition precedent and<\/p>\n
that even under Muslim Law plurality of marriages is not unconditionally<\/p>\n
conferred upon the husband.      It is also observed that the progressive<\/p>\n
outlook and wider approach of Islamic Law cannot be permitted to be<\/p>\n
squeezed and narrowed by unscrupulous litigants, apparently indulging in<\/p>\n
sensual lust sought to be quenched by illegal means, who apparently are<\/p>\n
found to be guilty of the commission of the offence under the law to<\/p>\n
which they belonged before their alleged conversion.<\/p>\n
Mat. Appeal No.94\/2007               18<\/span><\/p>\n
       18. We appeal to all concerned within the community and the<\/p>\n
administrative authorities and the Government to study the problem faced<\/p>\n
by the helpless and destitute women and children and to bestow thoughts<\/p>\n
on the ways and means to alleviate such social problems.<\/p>\n
       19. Coming to the case on hand, we find that the reasons stated by<\/p>\n
the Family Court that the second marriage contracted by the<\/p>\n
respondent\/husband and the refusal of the petitioner\/wife to live with the<\/p>\n
husband on account of his second marriage are not by themselves<\/p>\n
sufficient grounds to grant a decree for dissolution of marriage under the<\/p>\n
Dissolution of Muslim Marriages Act. Refusal of the wife to share the<\/p>\n
conjugal home with the co-wife is justified for claiming maintenance. In<\/p>\n
such circumstances, it is the duty of the husband to set up separate<\/p>\n
residence for her. At the same time, we find that the petitioner\/wife had<\/p>\n
pleaded several other grounds permissible under law for divorce.<\/p>\n
Inequitable treatment to one wife against the Quranic injunction gives rise<\/p>\n
to a tenable claim for divorce.     The Family Court failed to examine<\/p>\n
whether the petitioner\/wife was entitled to a decree for dissolution of<\/p>\n
marriage under any or all the heads for which there is sound foundation<\/p>\n
in the pleadings.\n<\/p>\n
Mat. Appeal No.94\/2007               19<\/span><\/p>\n
      20. In the result, the order under appeal is set aside and the case is<\/p>\n
remanded to the Family Court, Thrissur for fresh disposal in accordance<\/p>\n
with law. There will be no order as to costs.\n<\/p>\n<\/p>\n
      21. We place on record our deep appreciation for the strenuous<\/p>\n
efforts taken by Adv. Sri. M.P.M. Aslam as amicus curiae and for his<\/p>\n
valuable assistance.  We would also like to make a special mention of<\/p>\n
the able assistance of     Sri. E.S..M. Kabeer, learned counsel for the<\/p>\n
appellant and Smt. A. Parvathi Menon, learned counsel for the respondent.<\/p>\n
      The Registry shall send a copy of this judgment to the Ministry of<\/p>\n
Law and Justice, Government of India, New Delhi, the Chief Secretary to<\/p>\n
the Government of Kerala, Thiruvananthapuram and the Chairman, Kerala<\/p>\n
State Wakf Board.\n<\/p>\n<\/p>\n
                                     (KURIAN JOSEPH)
\n                                            JUDGE<\/p>\n
                                      (HARUN-UL-RASHID)
\n                                             JUDGE<\/p>\n
sp\/<\/p>\n
Mat. Appeal No.94\/2007    20<\/span><\/p>\n
                                  C.R.\n<\/p>\n
                              KURIAN JOSEPH
\n                                      &
\n                              HAURN-UL-RASHID, JJ.\n<\/p>\n
                              MAT.APPEAL NO.94\/2007<\/p>\n
                                  JUDGMENT<\/p>\n
                              22nd October, 2008<\/p>\n
Mat. Appeal No.94\/2007    21<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Saidali K.H. vs V.Saleena on 22 October, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM Mat.Appeal.No. 94 of 2007() 1. SAIDALI K.H., S\/O HASSAN, … Petitioner Vs 1. V.SALEENA, D\/O ABOOBACKER, … Respondent For Petitioner :SRI.ESM.KABEER For Respondent :SRI.J.ABHILASH The Hon’ble MR. Justice KURIAN JOSEPH The Hon’ble MR. Justice HARUN-UL-RASHID Dated […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-172957","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSaidali K.H. vs V.Saleena on 22 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/saidali-k-h-vs-v-saleena-on-22-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Saidali K.H. vs V.Saleena on 22 October, 2008 - 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