ABDURAHIMAN Vs. KHAIRUNNEESA

JUDGEMENT

(1.) How is the expression "does not treat her equitably in accordance with the injunctions of the Quran" in Section 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 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 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 Section 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 married again. He did not specifically assert that he was treating both his wives equally and equitably.