| SooperKanoon Citation | sooperkanoon.com/917560 |
| Subject | Family |
| Court | Kerala High Court |
| Decided On | Sep-27-2010 |
| Case Number | Mat.Appeal.No. 613 of 2010() |
| Judge | R.BASANT; M.L.JOSEPH FRANCIS |
| Reported in | ILR2010(4)Ker239 |
| Acts | Dissolution of Muslim Marriage Act - Sections 2(viii)(f), 2(viii); Muslim Personal Law |
| Appellant | Parakkattil Abu |
| Respondent | Pachiyath Beekkutty |
| Cases Referred | Abdurahiman v. Khairunneesa (supra). |
2. This Matrimonial Appeal is preferred by the appellant/husband, claiming to be aggrieved by an order of dissolution of marriage passed under Section 2(viii)(f) of the Dissolution of Muslim Marriages Act in favour of the respondent, his wife.
3. Marriage is admitted. The marriage took place on 18.08.1980 admittedly. Two children have been born in the wedlock.
4. Admittedly the appellant/husband got remarried. The date of remarriage is not specified. Anyhow, it is not in disputing that after about 2 = decades of matrimony with the respondent, the appellant chose to marry again in 2005.
5. Obviously the second marriage was not with the consent of the respondent/wife and the respondent/wife came to Court raising allegations of matrimonial cruelty against the husband. Her claim for divorce was founded on the alleged circumstance that subsequent to the second marriage, the husband has been treating her cruelly and inequitably.
6. The matter stood posted to 17.05.2005 for appearance of the husband. He did not appear on that day. The case was adjourned to 28.05.2010. On that day, he entered appearance through counsel. No counter statement was filed. Time was sought. That was not allowed. The wife filed an affidavit in support of her claim for divorce on the ground of cruelty and more specifically on the ground of cruelty of the variety contemplated under Section 2(viii)(f) of the Dissolution of Muslim Marriages Act, i.e. Inequitable treatment of one wife when there were plurality of wives as permitted under the Muslim personal law.
7. The court below accepted the affidavit of the respondent/wife and proceeded to pass the impugned order. The husband/appellant claims to be aggrieved by the impugned order.
8. What is his grievance? The learned counsel for the appellant first of all contends that the appellant did not get reasonable time to advance his contentions. What is the contention that he wants to advance in the wake of the assertion of the wife in the petition that the husband is guilty of inequitable treatment between the two wives? She had asserted that the husband was guilty of cruelty in having treated her inequitably after the second marriage and her claim for divorce was founded on that plank of cruelty under Section 2(viii) of the Dissolution of Muslim Marriages Act. The counsel contends that her assertion of inequitable treatment is not correct or acceptable. He further contends that the respondent/husband did not get an opportunity to raise his contentions. These are the contentions raised.
9. The court below did take note of the decision in Abdurahiman v. Khairunneesa [2010 (1) KLT 891]. The court felt that the assertion of the wife about inequitable treatment was sufficient reason to grant a decree for divorce under Section 2(viii)(f) of the Dissolution of Muslim Marriages Act. We are unable to find anything wrong in the impugned order. We extract the relevant passages in paragraphs 34 to 37 of Abdurahiman v. Khairunneesa (supra).
"Para.34: We do, in these circumstances, Take the view that in a claim for divorce under S.2 (viii)(f) of the Act, it is the assertion of the woman that matters. She is the best judge to decide whether she has been treated equitably or not. When it is admitted or proved that there has been a second marriage and when the wife asserts that she has been treated inequitably and she would like to walk out of such marriage, no court can fetter her rights to quit such marriage. Whether there is cross-examination or not on such assertion of hers, her assertion will have to be accepted. She is the best judge of the situation. Quran mandates that she must be dealt with fairly and justly. Quran declares that it will be impossible for a husband to treat his wife fairly and justly where there is plurality of wives. Her assertion of inequitable treatment is consistent with the Lords declaration in Ayat 129 of Sura IV. It would be unreasonable for the rational, and blasphemous for the faithful, to question the wisdom of the Lords declaration relayed to us by the Prophet in Ayat 129 of Sura IV. Hence, if she perceives the treatment to be unjust and inequitable, her assertion will have to be totally accepted.
35. Tested on the constitutional mandate of equality also we find this construction has to be followed. The husband has a right to unilaterally walk out of marriage - even a monogamous marriage. At least when faced with the ignominy of polygamy, the wife must on her assertion be able to secure an order through court to quit such marriage. Her assertion need not be tested on any other touch stone. It is, of course, true that S.2(viii)(f) of the Act does not recognize a polygamous marriage by itself as a ground for divorce; but read reasonably, the provision concedes to the wife a right to walk out of marriage if she is satisfied that she has not been treated equitably in such marriage.
36. We feel that the message must go loud and clear. When the husband unlocks the wicket (or is it the wicked) gate to admit another wife into matrimony, he passes on the password to open the main exit gate to the wife in matrimony as also the wife walking in. Either can thereafter, sooner or later, if she so chooses, go to the main exit gate and utter the words "inequitable treatment" and the gate shall open for her to go out leaving her husband behind with all obligations of a divorced husband to his divorced wife.
37. We must hasten to observe that the fact that she had consented to a polygamous marriage; that she had lived with her co-wife happily for some time or even that she had walked into such a polygamous marriage as the subsequent wife with consciousness that she was only going to be a second wife in a polygamous marriage are all no effective defenses in a claim for divorce on the ground under S.2 (viii)(f) of the Act. She cannot be estopped from claiming divorce on the ground S.2 (viii)(f) of the Act if she perceives after such marriage, at any point of time that the husband has treated her inequitably."
10. The wife complains about the conduct of her husband, remarrying after 25 years of matrimonial life with 2 children born in the wedlock. Such remarriage, without dispute was without the consent or approval of the wife. The wife felt that she was being treated inequitably after the second marriage of the husband. It is her assertion that matters. She perceived the conduct of the husband to her to be inequitable. It is her assertion that matters and the same will have to be accepted in the light of the dictum in Khairunneesa (supra). We find absolutely no merit in the grievance that the assertion of the wife about inequitable treatment should not have been accepted by the court below. The court below, according to us, did not commit any error in choosing to accept and act upon the affidavit sworn to by the respondent about the alleged matrimonial cruelty meted out to her by her polygamous husband, who contracted a second marriage after 25 years of matrimony.
11. The counsel then contends that a proper affidavit has not been filed. What is the impropriety in the affidavit? The counsel contends that the details of inequitable treatment have not been mentioned in the affidavit and there is only vague statement regarding the alleged cruelty. It is not disputed that the wife has specifically asserted in the affidavit that the assertions in the petition may be read as part of the affidavit. Notwithstanding the fact that the wife did not repeat the specific allegations of matrimonial cruelty in the affidavit, considering the fact that admittedly the allegations were narrated in detail in the petition and the wife had made averments in the affidavit to incorporate the allegations in the petition, we are not persuaded to agree that there is any such defect or inadequacy in the affidavit, which can persuade us to reject the claim of the wife for that sole or simple reason. Reasonable time has been given to the husband to appear and file his objections. He did not file his objections. The fact that after 2 = decades of matrimony and birth of 2 children the husband had remarried without the consent of the wife is admitted. In these admitted circumstances, the fact that the husband was not granted further time to file his objections is found to be of no relevance. His grievance that he was not given the luxury of further time to raise his contention is without any merit and must fail. We note that the court below had only imbibed the sense of expedition which the circumstances warranted. This was true to the observations of the Division Bench in para.47 of the judgment in Khairunneesa (supra) which we extract below:
"Para.47: Before parting with this case, we must note that not withstanding the availability of such a foolproof case, the wife has been compelled to remain waiting from 2003. This is unfortunate. At least the claims under S.2 (viii) (f) of the Act deserve to be disposed of quickly and expeditiously - nay instantly, by the courts. All claims in which such a claim under S.2 (viii)(f) of the Act is made must be disposed of by the court as expeditiously as possible." (Emphasis supplied)
12. No other contentions are raised. We are satisfied that the impugned order does not warrant interference. The challenge in this appeal fails.
13. This Matrimonial Appeal is, in these circumstances, dismissed in limine.