The Kerala High Court has held that a Muslim woman's claim of "inequitable treatment" in a polygamous marriage should be accepted by courts as ground for divorce.
Courts must accept a Muslim wife's assertion in a polygamous marriage that she had been treated "inequitably" by her husband in claims for divorce under sect 2(vii)(f) (that he did not treat her equitably with other wives
in accordance with the injunction of the Quran) of the Dissolution of Muslim Marriages Act, 1939, the court said.
"It was the assertion of woman that matters in the case if she felt inequality from the husband. She is the best judge to decide whether her husband was showing discrimination towards her or no," a division bench comprising Justices R. Basant and M. C. Hari Rani ruled Wednesday.
When it was admitted or proved that there had been a second marriage and when the wife asserted that she had been treated inequitably and that she would like to walk out of such a marriage, no court could fetter her right to quit the marriage, the bench held.
The observation was made by the bench while upholding a lower court's order granting decree of divorce to Khairunnissa on a divorce petition filed by her and dismissing an appeal by her husband Abdulrehiman of Perinthalmanna challenging it.
The court pointed out that a Muslim husband had the right to walk out of a marriage unilaterally even in a monogamous marriage. "At least when faced with the ignominy of polygamy, the wife must on her assertions be able to secure an order through court to quit such a marriage. Her assertions need not be tested on other touchstones," the court said.
Though Sect 2 vii (f) of the Act does not recognise a polygamous marriage by itself as ground for divorce, but read reasonably, "the
provision concedes to the wife the right to walk out of the marriage if she is satisfied that she has not been treated equitably in such marriage," the court said.
The Quran mandates that the woman must be "dealt with fairly and justly" and it declares that it will be impossible for a husband to treat
his wife fairly when there is "plurality of views". If she perceives the treatment to be unjust and inequitable, her assertions would have to be accepted totally, it held.
Adulrehiman and Khairunnissa got married in 1980. After three years, he married again.