NOT PERFORMING MARITAL OBLIGATION WITH THE FIRST WIFE AFTER THE SECOND MARRIAGE IS A VIOLATION OF QURANIC INJUNCTIONS - KERALA HC

The Kerala High Court held that refusal by a Muslim man to cohabit or perform marital obligations with his first wife after performing a second marriage violates Quranic injunctions and is a valid ground for divorce. The HC observed an appeal filed by a woman against a family court's decision, which earlier dismissed her divorce plea. 

The woman filed the petition on grounds listed under the Dissolution of Muslim Marriages Act of 1939. The two got married in August 1991 and had three children together. However, when the husband left for abroad, he married another woman abroad during the subsistence of marriage with the appellant.

The appellant claimed that the husband stopped visiting her in 2014, and he conceded about his second marriage. The husband later told the appellant about his second marriage. He provided maintenance by way of money to the appellant on several occasions. 

A Division Bench of Justices A Muhamed Mustaque and Sophy Thomas held when there is the existence of another marriage during the subsistence of the previous marriage; the burden is on the husband to prove that he treated both the wives equally. 

"The Family Court assumed that providing maintenance would be sufficient to prove that the husband performed his marital obligations. Therefore, the Court granted them a divorce. According to us, the finding cannot stand the scrutiny of the law. The refusal to cohabit and perform marital duties with the appellant shows that he had not treated the two wives equally."

Author: Papiha Ghoshal