Kerala High Court in its recent judgement has held that Quranic injunctions are violated if a Muslim man refuses to co-habit or perform marital obligations with his first wife after entering into a second marriage. The court further held that such violation of Quranic injunctions constituted a valid ground for divorce.
The Court said, “The refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which command equal treatment of the wives of the husband contracts more than one marriage,”
A Division Bench comprising of Justices A Muhamed Mustaque and Sophy Thomas further noted that in the case of a second marriage with a different lady during the subsistence of the first marriage, the onus is on the husband to establish and prove that both wives were treated equitably according to the injunctions of Quran.
The judgement of the Kerala High Court was made after a petition was filed by a Muslim woman challenging the decision of a family court that had earlier dismissed the divorce petition. The petition was filed on grounds mentioned under the Dissolution of Muslim Marriages Act of 1939.
The various grounds of the Act under which the High Court accepted the petition were – Section 2(ii) that stated “that the husband has neglected or has failed to provide for her maintenance for a period of two years”, Section 2(iv) “that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years”, Section 2(viii) (a) “that the husband treats her with cruelty, that is to say- (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment” and Section 2(viii) (f) which stated, “that the husband treats her with the cruelty that is to say- (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.”
While the Court concurred with the family court on Section 2(ii) saying that the husband indeed sent money to the Muslim woman on several occasions during his time abroad, but the Court found the Muslim husband violating Section 2(iv) of the Act and refused to believe the husband’s explanation that he entered into the second marriage because the wife allegedly did not want to have a sexual relationship with him. The Court stated that the couple had three children and there existed no evidence that proved the husband wanted to co-habit with the Muslim woman.
It thus said, “That means, he failed to perform the marital obligations…The Family Court carried on an assumption that providing maintenance would be sufficient to prove that the husband performed marital obligations. This finding, according to us, is erroneous and cannot stand the scrutiny of the law”
Furthermore, the Court in its judgement rejected Section 2 (viii) (a) of the husband treating the wife with cruelty as the couple were living separate lives for the past five years. However, the Court stated that refusal to cohabit and perform marital obligations with the wife according to section 2(iv) has proved that the husband had not treated the two wives equally which led to the violation of the Quranic injunctions. The Court finally granted the divorce.
Earlier, a Muslim woman from Kerala had filed a petition at the Kerala High Court where she sought exemption from the mandatory 90-day waiting period of ‘Iddah’ for remarrying after she had divorced her husband under the extra-judicial divorce procedure ‘Khula’. Even after High Court’s landmark judgement which gave Muslim women the right to seek divorce through ‘Khula’, the Ernakulam family court in Kerala had restrained the Muslim woman from remarrying.
