Kerala High Court
Abdurahiman 49 Years vs Khairunnessa 43 Years on 1 March, 2010
Bench: R.Basant, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 82 of 2004()
1. ABDURAHIMAN 49 YEARS,
... Petitioner
Vs
1. KHAIRUNNESSA 43 YEARS,
... Respondent
For Petitioner :SRI.K.P.MUJEEB
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :01/03/2010
O R D E R
R. BASANT &
M.C. HARI RANI, JJ.
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Mat. Appeal No. 82 of 2004-E
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Dated this the 1st day of March., 2010
JUDGMENT
Basant,J.
How is the expression "does not treat her equitably in accordance with the injunctions of the Quran" in Sec.2(viii)(f) of the Dissolution of Muslim Marriages Act, 1939 (hereinafter referred to as `the Act') to be understood in law? Whose standards are to apply and prevail? Is it the partisan standards of the polygamous husband to be followed? Is it the cold objective standards of the court - an outsider, to be followed? Or is it the assessment and evaluation of the helpless wife to be reckoned as crucial? Should not that expression consistent with the humane socialist commitment of the constitution in favour of the helpless and hapless receive a construction in favour of the wife in distress? Can the expression be understood divorced of the core Islamic Mat. Appeal No. 82 of 2004-E -: 2 :- approach to life and marriage that marriage is an arrangement to be enjoyed and not to be endured reckoning the same as indissoluble? Should not the true perception of the right to life, in all its dimensions, persuade a court to give the expression the widest possible amplitude to liberate the wife in distress from her demeaning status of a `sapathni' (co-wife) - wife-in-law (husband's wife) is a crude translation, which she does not want to suffer and endure? These disturbing questions vex us in this appeal.
2. To the crucial and relevant vital facts first. Spouses are the parties. They got married in 1980 in accordance with the customary Muslim religious rites. Four children have been begotten in the marriage. The wife was taken by the husband to his place of employment abroad. She is an educated woman. She was employed as a Teacher there and it is her case that she has earned a total amount of Rs.10.52 lakhs while she was employed there till 1993. As the husband lost his employment abroad in 1993, the wife had to resign her employment and return to India collecting her terminal benefits. They came back to their native place and set up joint residence in a building. It is the case of the wife that she was led to believe that the property was purchased in her name using her earnings which she had entrusted to her husband. Her gold ornaments and Mat. Appeal No. 82 of 2004-E -: 3 :- wedding gifts including currency were also taken by him for that purpose. She realised later that she was taken for a ride and the property was not purchased in her name. The fourth child was conceived when they so started separate residence. The attitude of the husband towards the wife started changing thereafter and he started cruel behaviour against her. She was relegated to a different house with only one bed room and kitchen made available to her. He allegedly indulged in cruel behaviour. He did not maintain her. He did not perform his marital obligations. He indulged in physical cruelty against her. To crown all other circumstances, he, a person aged above 40 years, notwithstanding his marriage with her and four children born in the said wed-lock, contracted another marriage and started residing with the second wife. According to the petitioner/wife, he did not treat her equitably in accordance with the injunctions of the Quran. It is, in these circumstances, that she came to court with her application for divorce under Sec.2
(ii), (iv), (viii)(a) and (f) of the Act.
3. The husband resisted the prayer for divorce. He did not admit the second marriage. He denied the allegations of failure/omission to pay maintenance. He denied the allegation that he had not performed his marital obligations. He denied the allegation of physical cruelty. He did not explain why he Mat. Appeal No. 82 of 2004-E -: 4 :- married again. He did not specifically assert that he was treating both his wives equally and equitably.
4. Parties went to trial on these contentions. The wife examined herself as P.W.1. She examined a witness as P.W.2 to prove the second marriage of her husband. That witness marked Ext.A1 marriage certificate to prove the second marriage. The husband examined himself as R.W.1. He did not at that stage dispute the second marriage. In evidence, he took up an interesting stand unsupported by his pleadings that he had got married again with the consent of his first wife.
5. The court below by the impugned order found the wife entitled to a decree for divorce as claimed. Accordingly, the court below proceeded to pass the impugned order.
6. We are in this appeal primarily concerned with the decree for divorce under Sec.2(viii)(f) of the Act. This Court entertained a doubt as to the standards applicable regarding equitable treatment of the wife in accordance with the injunctions of the Quran. Counsel for the parties - Advocates M/s. K.P. Mujeeb and Pushparajan Kodoth were heard. As this Court felt the need for independent and unbiased assistance on the question of law, this Court requested some other counsel to offer assistance as amicus curiae. We have had the advantage of hearing Advocates M/s. M.P.M. Aslam, K.I. Mayankutty Mat. Appeal No. 82 of 2004-E -: 5 :- Mather, P.K. Ibrahim, C.S. Dias, Rajith, V.G. Arun and others. We place on record our appreciation for the assistance rendered by the counsel.
7. The learned counsel for the appellant challenges the decree for divorce under Sec.2(viii)(f) of the Act primarily on the ground that there is no evidence of any inequitable treatment of the wife contrary to the injunctions of the Quran by the husband. The wife had asserted so. Is that assertion sufficient? How is the question to be considered and answered? What is the nature of evidence that the court should look for and insist before a polygamous marriage is ordered dissolved on the grievance of the victim wife that she has not been treated equitably by her husband. This is the crucial question to be considered.
8. To answer the crucial and vital question, we feel that a proper understanding of the concept of marriage in Islam, a proper appreciation of the concept of marriage relevant to the modern times and a proper appreciation of the impact of constitutional socialism and the fundamental right to life will have to be undertaken. The question cannot obviously be decided sitting in an island circumscribed by the language of Sec.2(viii)(f) of the Act.
9. Islam does not accept marriage as an indissoluble tie at Mat. Appeal No. 82 of 2004-E -: 6 :- all. In Islam marriage basically is a human contract. Though a human contract, it has solemn significance also. Parties enter matrimony voluntarily on their own free will. The dominant purpose of marriage is the enjoyment of life by the spouses. The spouses together must be able to enjoy life. Marriage in Islam is not a cage where the parties who have entered have no key to unlock the cage and liberate themselves even when the marriage does not beget happiness. Islam in its dynamic liberalism and humanism has always accepted the option of the spouses to get the marriage dissolved. Modern notions about dissolubility of marriage appear to have permeated into the Islamic thoughts and law of marriage and divorce from ancient times. Centuries back, this approach to marriage and divorce was conceived by Islamic thought and vision of life. We are not unmindful of the possibility of, and the actual misuse of, such liberal humanistic provisions by unprincipled individuals who pay only lip service to their faith in Islam. But the fact remains that Islam has prescribed an easier, simpler and expeditious approach to the idea of dissolution of marriage without intervention of courts and authorities. The gender justice conscious modernist may legitimately complain that the advantage of such easy procedure for dissolution has not been made available to the female partner in matrimony. Islam's was a universal message. The message Mat. Appeal No. 82 of 2004-E -: 7 :- emanated at a given point of time in history. It emanated from a particular context in Arabia at a certain juncture of history. The universal message did not express itself in a vacuum. The divine message was expressed in a given language and at a given point of time and geography. The quality of the antenna which receives the message and the sublimity of the receiver of the message is crucial in understanding the message. The universal message was to transcend time and geography. But it was to have relevance primarily in the societal context in which the message was received and relayed. In a war ravaged society with war widows, orphans and captives in abundance, the message of the Lord was received and declared. In that society at the relevant point of time, if a census were taken, the gender proportion of the fertile population must certainly have been grossly uneven. The male species, it must be realised was heavily outnumbered on account of the war. It must, at any rate, have been exceeding 1:2. The possibility of a wife wanting a decree for divorce must have been rare in the societal context. If hence emphasis was not laid on the right of a woman to get advantage of easy dissolution of marriage, it cannot be reckoned as gender bias of Islam against the fairer sex.
10. If there be any reservation about the gender justice of Islam in marriage and divorce, we feel one should visit the story Mat. Appeal No. 82 of 2004-E -: 8 :- of Jameela which is referred to in at least two precedents as we ascertained it. In Mohammed v. Sainaba Umma (1987 (1) KLT 712) and Amma Khatoon v. Kashim Ansari (AIR 2001 Jharkhand 28) , the learned Judges have referred to the case of Jameela. Thabit ibn Quais was the husband of Jameela. Jameela approached the Prophet and claimed divorce from her husband. She had no allegation to make against her husband. He was not guilty of any contumaciousness in matrimony; but she did not like him. For the simple reason that she did not like his physical appearance, she wanted to claim divorce. She complained to the Prophet that but for the fear of God she would have struck him on the face whenever he approached her. The Prophet ensured that she was done justice i.e., she got what she deserved. It was ensured by the Prophet that her husband divorced her.
11. No person researching into the gender justice dimension of Islamic law in marriage and divorce can afford to ignore social realities of the times and how the Prophet who relayed the Lord's message to the universe, understood the message. Jameela's story highlights that the liberal option to walk out of a marriage when such marriage does not cater to happiness and contentment was given not to the male species alone; but to the female species also. An attempt to understand Mat. Appeal No. 82 of 2004-E -: 9 :- Islamic law cannot be undertaken without understanding the core concept of Islam that the marriage is an institution to facilitate enjoyment of life and if the institution does not cater to enjoyment of life, the parties (the mates as they are referred to) have the option to walk out of the same liberally without any obligation to remain in chains in such unfortunate matrimony which is not conducive to happiness and contentment. We have adverted to this liberal humanist dimensions of the law of marriage and divorce in Islam only to remind ourselves the mind set with which we have to approach the task of understanding the true meaning of the expression "does not treat her equitably" in Sec.2(viii)(f) of the Act.
12. The concept of marriage being a sacramental indissoluble tie which pervaded the Hindu and Christian law relating to marriage and divorce does not hold water any longer in the modern times as a dogma. It is here that we want to remind ourselves of the true concept of marriage in the modern liberal world. Winds of change are sweeping and the traditional concept of indissolubility of marriage is shaking. That concept has practically lost its sheen and fervor. Doctrine of indissolubility is today, nothing but an unacceptable relic of the past in the marriage laws. Marriage as an institution has totally different purposes and incidents in the modern world. We need Mat. Appeal No. 82 of 2004-E -: 10 :- only reiterate with approval what one of us has already stated in para-49 of Aboobacker v. Rahiyanath (2008 (3) KLT 482) as to how the concept of marriage has to be understood now.
"Matrimony today is not merely an arrangement of convenience for exhausting biological, physical and carnal urges without offending the norms of morality of the given age. Spouses today are not merely machines in the assembly line of production to perpetuate the human race on this planet. Marriage today is not merely a concession of the strong and more powerful male to the women who outnumber men heavily in a war ravaged community where war widows needing protection and safety are rampant. Marriage today is not an arrangement between the master and a slave or domestic maid hired for life for performing the domestic chores of cooking, home management and rearing of children. Matrimony as an institution in the modern era must be reckoned as a serious dimension of the pursuit of the mission of life by equal adult partners seeking perfection, completeness, harmony, happiness and contentment in life. The pursuit has physical, mental, intellectual and spiritual dimensions. Marriage in the modern era can only be reckoned conceptually as an arrangement of lasting friendship, partnership, mutual complementarity, affection, love, support, caring and sharing between two adult equal partners of different sex." Mat. Appeal No. 82 of 2004-E -: 11 :-
13. The arrangement of marriage, being primarily and predominantly the product of a voluntary decision of two adult human beings who are parties to the arrangement, it can never be forgotten that such human beings are likely to err in their decision. Try as they might, they may not be able to make the marriage work and find happiness and contentment in such marriage. In such a situation to compel them to live and endure the decision for the rest of their lives notwithstanding the realization of the gross error in the decision may cater to the requirements of a stable and sound concept about marriage in society in yester years. But all societies and systems of jurisprudence have now accepted that it is no virtue to live by such a decision in perpetuity if the decision turns out to be grossly erroneous. The option to walk out of matrimony honestly must certainly be reckoned as an incident of the right to life. Here again we need only reiterate what we had earlier mentioned in para-37 of the the decision in Manoj C.V. v. Vidhya (2010 (1) KHC 69) . The feeling of shame and guilt did worry us as the system of which we are part has to share the blame for the unfortunate plight of the young couple standing in the long queue before courts one of whom wants liberation from the marital tie and the inability of ours to grant them the time that they need from us immediately. Their plight disturbed us. Mat. Appeal No. 82 of 2004-E -: 12 :-
14. We hence disgressed and observed that: "Our experience in this jurisdiction prompts us to think aloud on the state of matrimonial law and procedure in our country. Right to life under Article 21 of the Constitution must definitely include the right to a healthy and harmonious matrimonial life. Marriage as an institution becomes meaningless if it were to be endured and not enjoyed. The right to opt out of an emotionally dead marriage will have to, subject to the concerns of public order and morality, be essentially accepted - tomorrow, if not today, as an incident of the right to life. It will of course have to be secured that the economically fragile divorced spouse is adequately protected. Section 125 Cr.P.C., more than effectively discharges this basic obligation in its fundamentals. Progressive legislatures will certainly have to accept and recognise the economic right of the marital partners to honourably divide between them the wealth and assets acquired during coverture at the time of termination of relationship. If these concerns are properly addressed, a welfare socialist state cannot and must not, we feel, hesitate to recognise the right of a spouse to honourably walk out of an emotionally dead marriage with an incompatible spouse. The enormity of the number of lives involved inextricably in litigation for securing divorce , the inevitable laws delays which contribute to the life of litigation Mat. Appeal No. 82 of 2004-E -: 13 :- and the loss of precious prime time in life of young spouses in such complex litigation do all worry us and instill in us a deep sense of dissatisfaction and frustration. Is marriage an institution for imprisonment for life against the volition and desire of individuals? If either party does not want to continue matrimony can and should the system and laws compel him/her to continue to endure such matrimony? Cannot individuals be safely entrusted with the right to choose their own fate? Should not marriage laws and the system realistically recognise that compatibility is sine qua non for the success of the institution of marriage? Should marriages dead de facto continue to live de jure? If so for whose benefit? Are the children in a nuclear family going to benefit in any manner by the continuance of such a dead matrimony between warring parents? Nature or God gives a person one opportunity to live in this stint of life and should she/he not be permitted to so arrange his life as to pursue happiness in a manner that is not opposed to public order and morality? Should not spouses of unhappy marriages be permitted to walk out of such marriages honourably and as friends on the mere ground of incompatibility of temperament, after the mandatory period of waiting, counselling and conciliation? Are people going to walk out of solemn marriages merely because law offers such opportunity to redeem Mat. Appeal No. 82 of 2004-E -: 14 :- themselves from dead marriages? The law maker and civil society must address themselves to these disturbing questions and come out with answers. We feel that it is the duty of the Kerala legislature to lead the country on this aspect by bold and innovative legislation? Has not our Kerala experience shown us convincingly that easier and less cumbersome divorce laws do not necessarily increase the incidence of divorce and that marriages last longer in our culture not because the laws of divorce are draconian but because of the essential culture and attitude of the polity to marriage and family?"
15. Confirmed optimists we are, and we do believe that the mandate of Art.44 of the Constitution that the State shall endeavour to enact a uniform civil code for all Indians shall be translated into reality at some point of time. When such a uniform civil code comes into being, it is our ardent hope that there shall be liberal borrowing from the concept of Islam about easy, simpler, non-expensive, non-cumbersome and user friendly procedure prescribed for unwilling spouses to walk out of such dead marriage with honour, self-respect and dignity duly providing for the economic security of the fragile partner of such fractured marriage. Provision to quit marriage on the ground of incompatibility after the mandatory period of waiting, counselling and conciliation with accent on economic security of Mat. Appeal No. 82 of 2004-E -: 15 :- the partner will certainly be there in such uniform Civil Code, we do hope.
16. Having thus adverted to the concept of marriage in Islamic law and the modern concepts about marriage prevailing now in our progressive society, we must advert to the implications of the fundamental right to life in the controversy. The interpreter has to be conscious of the nuances of the right to life under Art.21 of the Constitution which has received a revolutionary dimension at the hands of the Supreme Court. It is unnecessary to advert to precedents. Right to life is not any more merely a negative right which provides against the arbitrary extinguishment of life. It includes the right to meaningful life and life with dignity and self-respect. Art.13 of the Constitution declares that no pre or post constitutional law can be enforced within the territory of India if the same is inconsistent with fundamental rights enshrined in Part III of the Constitution. If such fundamental right to life is offended by any such law, no such law can be enforced after the advent of the constitution. While understanding Sec.2(viii)(f) of the Act the dimension and nuances of the right to life under Art.21 have got to be borne in mind. An argument is advanced that personal law is out of bounds for Art.13. We have in paragraphs 18 to 27 of the decision in Saumya Ann Thomas v. Union of India & Mat. Appeal No. 82 of 2004-E -: 16 :- Another (judgment dated 25/2/2010 in Mat. Appeal No.20076/09) disagreed with this idea which finds expression in the decision of the two Judge Bench of the Bombay High Court in The State of Bombay v. Narasu Appa (AIR (39) 1952 Bombay
84). We have taken the view that the decision of Srikrishna Singh v. Mathura Aahir & Others ((1981) 3 SCC 639) cannot be held to have approved the dictum in Narasu Appa (supra). We have expressed our opinion that the decision in Mathew & Another v. Union of India (1999 (2) KLJ 824) deserves re- consideration by a larger Bench. We have taken the firm view as declared in the binding precedent of the Full Bench in Mary Sonia Zachariah v. Union of India (1995 (1) KLT 644 (FB)) that so long as the impugned provisions are part of an Act it must pass the test of constitutionality even if the provision is based on religious principles. In these circumstances, we take the view that we are dealing with a provision in a statute relating to personal law and while interpreting the same also an approach consistent with the right to life guaranteed under Art.21 of the Constitution has to be adopted by courts. Therefore, the constitutional perspective of the fundamental right to life - i.e., the right to life with dignity and self-respect must also inform us while trying to understand the true meaning Mat. Appeal No. 82 of 2004-E -: 17 :- of the expression "does not treat her equitably" in Sec.2(viii)(f) of the Act.
17. We cannot afford to ignore the principles of constitutional socialism declared in the preamble of the Constitution. We approve and endorse what one of us has already observed in para-49 of Aboobacker (supra) that constitutional socialism is not a competing political ideology. If it were so, the pluralist Indian Constitution may not have declared its allegiance to such a political ideology in its preamble. The development of humanism is recognized as one of the fundamental duties of the Indian citizen in Art.51A(h) in Chapter IVA of the Constitution. Humane humanism is the bedrock of Indian Constitutional socialism. It transcends politics and political ideology. It declares the commitment of the republic to the cause of the less fortunate, the under privileged, the marginalized and the suffering. This preambular commitment of the Indian State is to show commitment to the weak, concern for the underprivileged and loyalty to the marginalized. All the limbs of the State, be it the law maker, the law enforcer or the law interpreter/adjudicator cannot afford to ignore this fundamental preambular commitment. All law making, executive action and judicial interpretation/adjudication is to lead the polity of Indian to the promised destination Mat. Appeal No. 82 of 2004-E -: 18 :- identified in the preamble. To wipe every tear from every eye, the dream of the Mahatma - the Father of the Nation, is encapsulated in this vision of constitutional socialism in the preamble. While attempting to interpret the expression "does not treat her equitably", this Court must remind itself of the need for such commitment to humane humanism.- i.e., constitutional socialism.
18. Having so identified the mind set with which we must approach the challenge of interpreting the expression "does not treat her equitably" in Sec.2(viii)(f) of the Act, we shall now look at the statutory provision closely. We extract Sec.2(viii)(f) of the Act below:
"2. Grounds for decree for dissolution of marriage.-- A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely.--
x x x x x x x x x x x x x x x x x x x x x x x x
(viii) that the husband treats her with cruelty, that is to say:-
x x x x x x x x x x x x x x x x x x x x x x x x x x x Mat. Appeal No. 82 of 2004-E -: 19 :-
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quaran."
19. What impresses (or to put it more honestly, disturbs) us at the very outset is that the provision accepts polygamy. Whether polygamy is constitutional and can stand the test of Art.21 of the Constitution is a question that looms large.
20. Polygamy is permitted, tolerated and accepted and enforced by the Indian courts only because the Muslim Personal Law (Shariat) Application Act, 1937 mandates that the Muslim Personal Law (Shariat) which permits polygamy has to be followed by the Indian courts. The stipulation regarding polygamy is therefore accepted and enforced as permitted and mandated under the Shariat Act, 1937. In that view of the matter, the law permitting polygamy will also have to pass the test of constitutionality under Art.13. We have already adverted to this aspect in some detail in another judgment that we pronounced recently (see paras-17 to 27 of our judgment dated 25/2/2010 in W.P.(c) No.20076/09 Saumya Ann Thomas v. Union of India which deals with this aspect). We are not called upon in this case to undertake that question - of the constitutionality of otherwise of law permitting polygamy. We need only note that it will be necessary for us to give an interpretation to the expression "does not treat her equitably" in accordance with the Mat. Appeal No. 82 of 2004-E -: 20 :- right to life guaranteed under Art.21of the Constitution.
21. To us, it appears that the said question deserves careful consideration. We have already held that a stipulation in a piece of statutory personal law is also bound to pass the test of constitutionality under Art.13 of the Constitution. We have expressed the opinion that even when it is not a piece of statutory personal law it will have to be reconsidered whether such piece of personal law declared by religion should also stand the test of constitutionality under Art.13. Be that as it may, the question whether polygamy offends the right to life under Art.21 is definitely a question that has to be considered by the polity and civil society in this country. Despite the unequivocal mandate of Art.44, in spite of elapse of a period of 63 years of independence and 60 years of existence as a secular republic and despite the directions of the Supreme Court in various precedents including Sarla Mudgal v. Union of India (AIR 1995 SC 1531), the Parliament has not moved an inch forward in this direction. The courts also despite the dynamic interpretation of Art.21 have not been called upon to, or at least they have not embarked so far on that course, to decide whether polygamy permitted or tolerated by Indian law offends the fundamental right to life of a Muslim woman. How long can the Parliament and judiciary avoid their duty/obligation to tackle this Mat. Appeal No. 82 of 2004-E -: 21 :- bull by the horns? If the system with its commitment to core constitutional values has to be honest and true to itself, sooner if not later, the legislature and the judiciary will certainly have to consider the said question honestly and true to the core values of the Indian Constitution.
22. Sec.2(viii) (f) of the Act provides an escape route for a married woman who finds a third person intruding into the space of matrimony which has place only for two. Marriage, according to the well accepted modern concept, is a space which can accommodate only two and not three or more. On account of various compulsions, bigamy has been tolerated by different cultures of the world and India, as the boiling pot of cultures, has also permitted and tolerated the same so far. While bigamy has been proscribed for the followers of all other religions, the provisions in Islamic law permitting polygamy remain untouched. The right of the Muslim husband to have more than one (upto four) wives must be considered in the light of the axiomatic assumption that in matrimony there is sufficient space only for two. If a third one barges in and one within the matrimony is unwilling to accommodate the third, the unwilling second must have the option to walk out. This is the principle which Sec.2(viii) (f) of the Act unmistakably recognizes. This principle is expressed in the language that the wife can seek Mat. Appeal No. 82 of 2004-E -: 22 :- dissolution of her marriage on the plea that her husband `has not treated her equitably' in accordance with the injunctions of the Quran.
23. We note specifically the language employed by the legislature. We note that the section insists on equitable and not equal treatment of the wives in a polygamous marriage. Equal treatment of all wives - but not equitably, is no defence in a claim for divorce under Sec.2(viii)(f). We must dispel the impression at the earliest that the mandate is only for "equal treatment" of all wives. Equitability is the crux of the matter. Significantly, the equitable treatment is to be done "in accordance with the injunctions of the Quran". The primary source of Muslim law is the Quran. There are subsidiary sources also. It is significant that Sec.2(viii)(f) of the Act wants the wife to be treated "equitably" in accordance with the injunctions of the Quran and not "in accordance with the tenets of muslim law". A conscious and deliberate stipulation that injunctions of the Quran are to be taken into consideration and not any subsidiary sources of the Muslim Law is, according to us, clearly decipherable from the language of Sec.2(viii)(f) of the Act. An attempt to justify treatment as equitable on the basis of any subsidiary sources of Muslim Law does not appear to be permitted or tolerated in the light of the clear language of the law. This stipulation is in tune Mat. Appeal No. 82 of 2004-E -: 23 :- with the principles of Islamic Law. The modern notions of the institution of marriage and constitutional imperatives must also inform this Court while interpreting the statutory provision.
24. What are the Quranic injunctions? This is the next question to be considered. We have been assisted well by the counsel on this aspect. It is the common case that two Ayats of Sura IV relate to Quranic injunctions about equitable treatment. The first one is Ayat 3 of Sura IV. We extract the same below:
"If ye fear that ye shall not Be able to deal justly With the orphans, Marry women of your choice, Two, or three, or four;
But if ye fear that ye shall not Be able to deal justly (with them), Then only one, or (a captive) That your right hands possess.
That will be more suitable, To prevent you From doing injustice."
We may straight away note the commentary by Yusuf Ali to this Ayat.
"The unrestricted number of wives of the "Times of Ignorance" was now strictly limited to a maximum of four, provided you Mat. Appeal No. 82 of 2004-E -: 24 :- could treat them with perfect equality, in material things as well as in affection and immaterial things. As this condition is most difficult to fulfill, I understand the recommendation to be towards monogamy."
(emphasis supplied) This stipulation permitting marriage of a man with two, three or four women appears in the conditional clause about orphans. This rule regarding marriage is seen introduced while speaking about the duties to the orphans. The very foundation of tolerated polygamy in Islam is that the husband must be able to deal justly with plurality of wives. If he is unable to do so only one marriage is permitted for him. The religious foundation of Sec.(viii)(f) of the Act can be deciphered in Ayat 3 of Sura IV. If a person shall not be able to deal justly with orphans, he has the choice of marrying two , three or four women. But if he will be unable to deal justly with them, he can marry only one. The condition precedent for a polygamous marriage is the ability of the husband to deal justly with all his wives. According to Abdullah Yusuf Ali by way of material things as well as in affection and immaterial things the husband must be able to treat all his wives justly. If he is unable to do the same, the very foundation of such polygamous marriage would vanish affecting its legitimacy and continued validity.
Mat. Appeal No. 82 of 2004-E -: 25 :-
25. Having thus understood the Quaranic injunction in Ayat 3 of Sura IV we now go to Ayat 129 of Sura IV:
"Ye are never able To be fair and just As between wives* Even if it is Your ardent desire:
But turn not away (From a woman) altogether, So as to leave her (as it were) Hanging (in the air). If ye come to a friendly Understanding, and practise Self-restraint, God is Oft-forgiving, Most Merciful."
*(some translations show this as 'women')
26. To us it appears that Ayat 129 must give us the real clue to interpret Sec.2(viii)(f) of the Act. It is the declaration of God Almighty relayed to us by the Holy Prophet that no man shall ever be able to be fair and just when he has plurality of wives even if that be his ardent desire. This revelation accepts an indisputable principle of life as perceived by ordinary and mundane men and women. Yusuf Ali gives the following commentary:
"In this material world there are two principal causes of division between Mat. Appeal No. 82 of 2004-E -: 26 :- between man and wife, money and "the other woman" or "the other man". Money was dealt with in the last verse. Here is the case of "the other woman". Legally more than one wife (up to four) are permissible on the condition that the man can be perfectly fair and just to all. But this is a condition almost impossible to fulfil. If, in the hope that he might be able to fulfil it, a man puts himself in that impossible position, it is only right to insist than he should not discard one but at least fulfil all the outward duties that are incumbent on him in respect of her."
27. In a polygamous marriage, the husband may try most ardently to deal with his wives justly and equitably; but the Lord declares through the Prophet that this shall be impossible, however, earnestly one may try to do so. This declaration of principle by the Lord through the Prophet is vital and crucial while understanding Sec.2(viii)(f) of the Act and as to whose standards must be adopted while interpreting the section.
28. We feel that it will not be inapposite in this context to consider what Alla has ordained in Ayat 28 of Sura XXXIII. Alla commands the Prophet and gives directions on the manner in which the Prophet is to deal with his consorts. We extract Ayat 28 of Sura XXXIII below:
Mat. Appeal No. 82 of 2004-E -: 27 :-
"28. O Prophet! say To thy Consorts:
"If it be that ye desire The life of this world, And its glitter,--then come! I will provide for your Enjoyment and set you free In a handsome manner."
The Prophet is commanded to declare to his consorts that if they are not willing to live the sublime life expected of them as the Prophet's partners in matrimony he shall set them free from the marital tie in a handsome manner. Yusuf Ali's commentary on this Ayat shows that the consorts of the Prophet "are told here that they had no place in the sacred Household if they merely wished for ease or worldly glitter. If such were the case, they could be divorced and amply provided for." The message underlying this Ayat is also, according to us, eloquent. Where the consorts are unable to find happiness in their married life with the Prophet and find happiness elsewhere - i.e., in the life of this world and its glitter, the male partner in matrimony is commanded to offer to release them from marital tie to enable/allow them to enjoy life as they choose to. While considering the nature of the equitable treatment which Quran commands and insists, this Ayat is also found to be of relevance. Mat. Appeal No. 82 of 2004-E -: 28 :- That was the standard which even a male partner like the Prophet was commanded to follow.
29. It would be blasphemy for anyone to say that this statement of the general principle - that however ardent the husband may try he will not be able to be fair and just between his wives, is incorrect. Ayat 3 of Sura IV states that if you shall be able to deal with them justly you can marry two, three or four wives. Ayat 129 of Sura IV declares that however ardently you might try, this is impossible. The two have to be reconciled. It can only mean that there may be situations, as existed in Arabia at the relevant time that wives may be able to feel contentment, security and safety under one husband when there are no enough male persons to offer them such companionship separately. There may be situations where on account of compulsions women may be able to accommodate and tolerate more than one under the umbrella of marriage satisfactorily. Then and only then can such polygamous marriage be permitted.
30. According to us, this and this alone can be the true interpretation of the words "treat her equitably in accordance with the injunctions of the Quran". It is her assessment that matters. It is not the assessment of the partisan husband who notwithstanding the declaration of Ayat 129 may feel that he is ardently attempting to do the same and is actually treating his Mat. Appeal No. 82 of 2004-E -: 29 :- wives equitably. His standards are not to be applied at all. His egoistic assessment and evaluation about himself is irrelevant and unconvincing.
31. Next question is whether it is the objective standards of any other which should apply. While considering this, it must be noted, and we have already referred to that aspect earlier, that Islam has an extremely liberal modernism in its approach to dissolubility of marriage. If one partner is unwilling to endure the same, Islamic Personal Law does not seem to oblige such partner to remain in matrimony without his/her full consent. It is in this background that the Muslim woman's right to walk out of a polygamous marriage has to be considered. That the fact that the marriage is polygamous by itself is not recognized as a ground under Sec.2(viii)(f) of the Act cannot alter our conclusions. The underlying assumption definitely is that the wife would like to continue in such a polygamous marriage only if she finds happiness and contentment in such marriage. Otherwise like Jameela in the story narrated above she can approach the authority and get her marriage dissolved. What we intend to note is that it is her response that matters. It is for her to decide whether she is satisfied that her husband is treating her equitably in accordance with the injunctions of the Quran. Quran entitles her to be treated justly. Quran itself Mat. Appeal No. 82 of 2004-E -: 30 :- declares that it is impossible for a man however ardent his desire be, to deal fairly and justly with more wives than one. This clearly means that if the wife is not satisfied about the treatment given to her by her husband in a polygamous marriage she can assert that she has not been treated equitably and can walk out of marriage on that assertion. One of the reasons why Islam has a liberal attitude towards dissolution when it comes to the unilateral right of the husband to divorce a wife, is that he need not reveal intimate confidential details in the realm of privacy to any one including the court/outsider. He can divorce her without making any allegations and without intervention of courts. Dirty linen need not be washed in public. Mutual recriminations can be avoided. The relationship can be terminated honourably and the parties can part as friends. The same yardstick can apply when the woman chooses to terminate the polygamous marriage by resort to Sec.2(viii)(f) of the Act. She may feel that her husband is not physically treating her equitably. She may feel that he does not care about satisfying her physically and mentally. She may observe finer details of such inequitable treatment. In the scheme of the Islamic law she is not obliged to reveal to anyone such intimate and intricate details of unjust and inequitable behaviour to her. She can assert that she has been treated inequitably by her polygamous husband. That would Mat. Appeal No. 82 of 2004-E -: 31 :- entitle her to call it a day and quit such polygamous marriage. Islam in its humane liberalism and dynamism did concede such right to walk out of marriage to women like Jameela. It must be so in a case where the husband has admitted another into matrimony and the wife feels aggrieved by her unenviable position as a co-wife. Even if we adopt the standards of a reasonably prudent person who has imbibed Islamic liberalism and humanism as also the sublimity of modern approach to the institution of marriage, such person is bound to go only by the perception and response of the woman in distress about the equitability of her husband's treatment of her in the polygamous marriage and he would not impart his own standards to decide the controversy.
32. From the point of view of the right to life also this appears to be the only proper interpretation possible. Even an adulterous relationship is antithetic to a healthy marriage. As we noted earlier, there is no space for a third person in matrimony. To permit another to share the matrimonial bed with her husband; to have only half or 1/3rd or 1/4th of a husband for herself to live with - that is to share her husband with one, two or three others; to be perpetually in competition with another for the love, affection and attention of her own husband; to have a running rival like a shadow every moment of the day Mat. Appeal No. 82 of 2004-E -: 32 :- and night to snatch away the time for personal intimacies with her husband; to suffer in silence the ignominy when her husband goes after another woman ignoring her - is all, to put it mildly, the gross negation of the right to live; to live a meaningful life with dignify, self- respect and honour. Such a life is not a meaningful life. It is not a life with dignity. It is a life of perpetual agony and suffering. No woman with self- respect is likely to choose to suffer such ignominy. If the law obliges a woman to suffer such misery perpetually and lead a demeaning life, that would be negation of the right to life. From the point of view of the right to life, we are satisfied that the right to divorce under Sec.2(viii)(f) of the Act deserves to be given the widest possible meaning and content to enable a wife to escape and liberate herself from such a marriage which is contrary to the very fundamentals of marriage in the modern era.
33. From the point of view of the suffering of such a woman, we must give a meaning and interpretation to Sec.2(viii)
(f) of the Act which shall help us to wipe the tear of such a woman. It would be anachronistic, unjust and unfair for a Judge with commitment to the core values of humanism underlying the constitution not to perceive the suffering of such a woman. He must give interpretation for Sec.2(viii)(f) of the Act in a manner Mat. Appeal No. 82 of 2004-E -: 33 :- that shall enable such wife to put an end to her sufferings in such miscalled matrimony.
34. We do, in these circumstances, take the view that in a claim for divorce under Sec.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.
Mat. Appeal No. 82 of 2004-E -: 34 :-
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 Sec.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 Mat. Appeal No. 82 of 2004-E -: 35 :- 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 defences in a claim for divorce on the ground under Sec.2(viii)(f) of the Act. She cannot be estopped from claiming divorce on the ground Sec.2(viii)(f) of the Act if she perceives after such marriage, at any point of time that the husband has treated her inequitably.
38. Without pronouncement on the constitutional validity of the stipulation relating to polygamy now on the touch stone of Arts.21 and 13 of the Constitution , we must hold that such a liberal interpretation of the words "does not treat her equitably"
is necessary to give true meaning and content to the right to life of a woman caught in a polygamous marriage. The threat of losing the wife in hand must deter the husband definitely from inviting others to join him in matrimony.
39. We shall now consider how precedents have dealt with the question. Various decisions have been placed before us. We feel it unnecessary to advert to all of them. We shall refer to only three decisions. The first one is a decision by the learned Single Judge of the Allahabad High Court reported in Itwari v. Asghari (AIR 1960 Allahabad 684). The learned single Judge has observed that:
Mat. Appeal No. 82 of 2004-E -: 36 :-
"A Muslim has the undisputed legal right to take as many as four wives at a time. But it does not follow that Muslim Law in India gives no right to the first wife against a husband who takes a second wife, or that this law renders her helpless when faced with the prospect of sharing her husband's consortium with another woman."
40. Relying on precedents the learned Judge had observed that:
"the second marriage is not a single but a continuing wrong to the first wife".
The learned Judge has gone further to observe that it is not correct to contend that the first wife is not entitled to consider the second marriage as an act of cruelty against her. The Indian law does not recognize various types of cruelty such as Muslim cruelty, Christian cruelty, Hindu cruelty and so on and the test of cruelty is based on universal and humanitarian standards that is to say conduct of the husband which would cause such bodily or mental pain as to endanger the wife's safety or health. Referring to the ground for divorce under Sec.2(viii)(f) of the Act, the learned single Judge observed that:
"It is but a short step from this principle to ask the husband who has taken it into his head to have a second wife Mat. Appeal No. 82 of 2004-E -: 37 :- during the subsistence of the first marriage to explain the reasons for this conduct and in the absence of a convincing explanation, to conclude that there is little likelihood of the first wife receiving equitable treatment from him."
Discussing the importing of a second wife into the household, the learned Judge observed that:
"It leads to the asking of awkward questions, the raising of unsympathetic eyebrows and the pointing of derisive fingers at the first wife who is automatically degraded by society. All this is likely to prey upon her mind and health if she is compelled to live with her husband under the altered circumstances."
Referring to the circumstances under which inequitability may result in a polygamous marriage, the learned Judge observed that:
"Today Muslim women move in society, and it is impossible for any Indian husband with several wives to cart all of them around. He must select one among them to share his social life, thus making impartial treatment in polygamy virtually impossible under modern conditions. Formerly, a Muslim husband could bring a second wife into the household without necessarily meaning any insult or cruelty to the wife." Mat. Appeal No. 82 of 2004-E -: 38 :-
The learned Judge further observed that:
"Under the prevailing conditions the very act of taking a second wife, in the absence of a weighty and convincing explanation, raises a presumption of cruelty to the first."
The learned Judge finally proceeded to observe that:
"The onus today would be on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first. For example, he may rebut the presumption of cruelty by proving that his second marriage took place at the suggestion of the first wife or reveal some other relevant circumstances which will disprove cruelty."
Those visionary observations made by the learned Judge - Justice S.S.Dhavan of the Allahabad High Court in 1960 are all the more relevant in the present day context after elapse of a period of about 50 years. Those observations are consistent with our conclusion that the court can today depend on the perception of the wife in distress to decide whether there has been inequitable treatment or not.
41. We now refer to the decision of a Division Bench of this Court in K. Muhamma Latheef v. Nishath (2003 (1) KLT 877). Mat. Appeal No. 82 of 2004-E -: 39 :- Unambiguous observations were made that:
"If during the subsistence of a valid marriage the husband had remarried another, necessarily, that will be a mental cruelty towards the first wife, even though that is not the cruelty alleged in the petition. Merely because the appellant was willing to cohabit with the respondent while continuing the second marriage, there was no reason to court out the respondent, denying her a decree for dissolution of marriage."
42. The most crucial observations, according to us, appear later as follows:
"Even if the appellant contends that he can equitably treat both the wives without discrimination, it is a human impossibility. x x x x x x x x If the respondent is not willing to be a co-wife with another for the appellant, she cannot, in such circumstances, be compelled to live with the appellant."
The message we feel is absolutely clear from the decision in K. Muhamma Latheef (supra). The above observations of Hon'ble Mr. Justice Abdul Gaffoor support our conclusions.
43. Our attention has been drawn to the decision in Saidali v. Saleena (2008 (4) KLT 885). Relying on the said decision, it Mat. Appeal No. 82 of 2004-E -: 40 :- is contended that the court had taken the view that the admitted/ proved second marriage and the refusal of the first wife to cohabit cannot by itself be reckoned as a reason to order divorce under Sec.2(viii)(f) of the Act. We are unable to agree that such a rigid proposition of law is laid down in Saidali. Saidali (supra) does not refer to the earlier Division Bench in K. Muhamma Latheef (supra). If there be any conflict between the observations in the two, certainly K. Muhamma Latheef (supra) must prevail, that being the earlier decision and the latter having made no reference to it at all. More over, it must be noted that the observations in Saidali (supra) were conditioned by the relevant facts in that case. In para-6 the facts scenario is narrated. We extract para-6 below":
"6. Before the Family Court, the respondent admitted the fact of having contracted a second marriage on 9/4/2006.
The Family Court did not post the case for evidence, but decided the case on 25/1/2007 holding that since the second marriage is admitted by the respondent/ husband, the petitioner/wife is entitled to a decree of divorce. The Family Court also held that the respondent/husband having married again, the petitioner/wife was not willing to join him and that the said fact is Mat. Appeal No. 82 of 2004-E -: 41 :- sufficient to grant a decree for dissolution of marriage."
(emphasis supplied) This means that sufficient assertions were there in the petition; but there was no evidence available before the court in Saidali. The assertion of the wife on oath about inequitable treatment was not there. The court had not taken any decision and had only sent back the matter to the court below for a fresh decision in accordance with law after adducing evidence. On the dictum that we propose to lay down which in its crux is only that the assertions of the wife must be accepted when she states that her husband in a polygamous marriage is not treating her equitably, no principle of law contra has been laid down in Saidali (supra). That decision was only dealing with the need for statutory modification of polygamy permitted/tolerated by Muslim law. On the crucial question, no decision was taken and the matter was only sent back to the court below for fresh decision. We may observe that Saidali unfortunately did not refer to K. Muhamma Latheef (supra). It did not also refer to the commentary by Yusuf Ali that the wives in a polygamous marriage are entitled to equality and equitability not only in material things but also in affection and immaterial things. What is marriage without affection, love and intimacy was not considered by the Bench in Saidali. Marriage sans affection, Mat. Appeal No. 82 of 2004-E -: 42 :- love and intimacy would be a perverse misnomer. It will be no marriage at all. When the Lord ordained that the wives must be treated fairly and justly, it cannot be assumed that the reference was to clothing, shelter and other material things. Lord in His wisdom would not have said in Ayat 129 that it would be impossible to deal with plurality of wives justly and fairly despite the ardent desire of the husband if so narrow and constricted were the mandate of such fair and just dealing with wives. We must note that Saidali did not resolve any question of law but did only remand the matter for evidence and fresh disposal as the court had not even posted the case for evidence. If assertions of the wife on oath about inequitable treatment were there, we would assume that the Bench would have granted relief in Saidali to the hapless wife.
44. Having so understood the law we come back to the facts of the instant case. We note that the second marriage though not honestly admitted initially, is proved convincingly and conceded reluctantly in the course of the proceedings. The wife has asserted in the petition and in evidence that she was not treated equally and equitably. The sum total of her evidence shows unmistakably that she has not been treated equitably by her polygamous husband. The court below has accepted the same. We find no reason to disagree. We concur with the Mat. Appeal No. 82 of 2004-E -: 43 :- conclusion of the court below . The challenge against the order of divorce under Sec.2(viii)(f) of the Act is thus rejected.
45. It is unnecessary to go into the other grounds of divorce raised. We need only observe that we are satisfied that the wife has been denied maintenance; that the husband has failed to perform his marital obligations and that physical cruelty has been inflicted on the wife. The impugned decree for divorce under Sec.2(ii), (iv), and (viii)(a) of the Act are also thus found to be absolutely justified. The challenge against them also fails.
46. In the result:
(a) This appeal is dismissed.
(b) We declare that in a claim for divorce under Sec.2
(viii)(f) of the Act, the assertion of the wife in a polygamous marriage that she has been treated inequitably by her husband must be accepted by the court.
(c) The impugned order is upheld. The appellant shall pay costs to the respondent throughout.
47. Before parting with this case we must note that notwithstanding 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 Sec.2(viii)(f) of the Act Mat. Appeal No. 82 of 2004-E -: 44 :- deserve to be disposed of quickly and expeditiously - nay instantly, by the courts. All claims in which such a claim under Sec.2(viii)(f) of the Act is made must be disposed of by the court as expeditiously as possible.
48. The Registry shall place the matter before the Committee concerned to consider issue of specific directions in the form of a Circular to achieve the above end.
49. We again place on record our appreciation for the able assistance rendered to us by the learned counsel and our gratitude to the amicus curiae whose time in abundance we had demanded.
Sd/-
R. BASANT (Judge) Sd/-
M.C. HARI RANI (Judge) Nan/ //True Copy// P.S. to Judge