Case – Itwari v. Asghari, 1960
Fact – This is a Muslim husband’s appeal against the decision of the learned District Judge, Rampur, dismissing his suit for restitution of conjugal rights against his first wife who refused to return to him after he had taken a second wife and accused him of cruelty to her. The appellant
Itwari was married to Smt. Asghari about the year 1950 and lived with her for sometime. Then things went wrong and the wife ultimately left him to live with her parents; but he took no steps to bring her back and married another woman.
The first wife filed an application for maintenance under Sec. 488 Cr. P. C. Thereupon the husband filed a suit against her for restitution of conjugal rights.
The learned Munsif in disbelieving her allegation of cruelty against Itwari. He decreed the husband’s suit and also passed an order.
On appeal, the learned District Judge, Rampur reversed the finding of the trial court and dismissed the husband’s suit with costs.
Issue – Whether the conduct of the husband in taking a second wife is any ground for the first wife to refuse to live with him or for dismissing his suit for restitution of conjugal rights?
Contentions and Judgement
- In a suit for restitution of conjugal rights by a Muslim husband against the first wife after he has taken a second, if the Court after a review of the evidence feels that the circumstances reveal that in taking a second wife the husband has been guilty of such conduct as to make it inequitable for the Court to compel the first wife to live with him, it will refuse relief.
- The right to four wives appears to have been qualified by a ‘better not’ advice, and husbands were enjoined to restrict themselves to one wife if they could not be impartial between several wives – an impossible condition according to several Muslim jurists.
- If Mohammadan Law permits and enforces such agreements it follows that it prefers the breaking up of the first marriage to compelling the first wife to share her husband with the second. The general law, too, recognises the sanctity of such agreements, and it has been held that a contract restraining a Muslim husband from entering into a second marriage during the life time of the first is not void under Sec. 23 of the Contract Act which bans agreements in restraint of marriage.
- The court held that in a suit for restitution of conjugal rights, the circumstances in which a Mohammedan takes a second wife are relevant and material in deciding whether his conduct in taking a second wife was in itself an act of cruelty to the first; and that the onus is 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.
- In the absence of cogent explanation by the husband, “the court will presume, under modern conditions, that the action of the husband in taking a second wife involved cruelty to the first, and it would be inequitable for the court to compel her against her wishes to live with such a husband,” the court observed.
- The court said that the very act of taking a second wife constitutes cruelty, even though polygamy is recognized by the personal law. Similarly, restitution will not be granted where wife is living separately from her husband on account of non-payment of dower.
- These principles apply to the present case. The lower appellate court has found that the appellant never really cared for his first wife and filed his suit for restitution only to defeather application for maintenance. In the circumstances, his suit was mala fide and rightly dismissed.
- Lastly, the appellate court, reversing the finding of the trial court, believed the wife’s allegation of specific acts of cruelty committed by the husband and held that she had been deserted and neglected by the husband for so many years. In the circumstances, I concur in the opinion of the District Judge that it will be inequitable to compel the first wife to live with such a husband.
