Published on: December 31, 2023 at 00:10 IST
Court: High Court of Madras
Citation: Kothar Beevi V. K. Aminudeen(2017)
Honourable High Court of Madras has held that that if a Muslim husband has not treated his wife in accordance of Holy Quran, then it leads to conclusion that he has disentitled himself to a decree of restitution of conjugal rights. It is held that there is no law or a rule which compel the Court always to pass a decree in a suit for restitution of conjugal rights in favour of the Muslim husband, when against the first wife, and when he has taken a second wife during pendency of Lis.
22. On re-appreciation of the evidence, as discussed in the preceding paragraph, this Court finds that in a suit for restitution of conjugal rights by Muslim husband against the first wife, and when he has taken a second wife during pendency of lis, if the Court on appreciation of evidence feels that the circumstances are of such nature that wife was subjected to cruelty, thereby rendering it unsafe for the wife to return to her husband’s dominion were established, the Court may refuse to send her back. When there was a gross failure by the husband, of the performance of the obligations which the marriage of contract imposes on him for the benefit of the wife, might, if properly proved, afford good grounds for refusing him the assistance of the Court.
23. When the husband proceeds against wife for restitution conjugal rights and also contracted second marriage during the pendency of the suit for restitution of conjugal rights and in the instant case, the wife also complained of physical cruelty to extract money, after 18 years of matrimonial life, then the burden of proof is on the Plaintiff-husband who takes a second wife, to explain his action to prove that, his taking of a second wife involves no cruelty to the first wife, by adducing necessary evidence to that effect. For instance, he may rebut the presumption of cruelty by proving that his second marriage took Place on the suggestion of first wife, otherwise the Court will presume that under modern social conditions that the action of the husband in taking second wife, during pendency of the suit for institution of conjugal rights involves cruelty to the first wife then it could be inequitable for the Court to ask the wife to live with such a husband.
Drafted By Abhijit Mishra