Case Law:
Itwari v Asghari was a judgement where the court discussed some of the most controversial questions under the Islamic law. One, whether Mohammadan law mandates first wife to share her husband’s consortium with the second wife. Two, whether prevailing social conditions must be taken into consideration to decide if taking a second wife would constitute cruelty towards first wife. Three, whether the motive of husband behind filling restitution of conjugal rights was bona fide.
The facts of the case are as follows: The appellant Itwari(Husband) was married to Asghari(Wife). Both lived together for sometime and then started living separately due to some conflicts between them. Itwari made no efforts to bring Asghari back. After sometime, Itwari took a second wife and Asghari filed a suit for maintenance.’[1] . Thereupon, Asghari filed for restitution of conjugal rights. Wife refused to return and said that the husband has been cruel towards her. She claimed that husband had beaten her, deprived of her dower and jewellery and had caused her mental pain. She also said that Itwari had formed an illicit union with another woman whom he had then married. The first two issues mentioned in the first paragraph are relevant and would be discussed at length in the paper.
With respect to the first issue, appellant argues that it is the right of every muslim husband to take 4 wives and if the first wife is allowed to leave just because her husband has taken another wife, then it would be complete violation of the husband’s right. However, the court says that muslim law only permits polygamy but has never encouraged it. ‘Koran says that only if you feel it is equitable to take two, three or four wives you should take them, but if you feel you cannot be equitable then you must take only one wife’[2]. Many muslim jurists also believe that it is an impossible aspect to keep all the wives happy because even if the husband feels he is impartial towards his wives, wives might experience biasness. “Muslim law has always allowed the first wife to seek divorce on the ground that the husband has taken a second wife.”[3] In fact, in ‘Ayutunnessa Beebee v. Karam Ali’[4], the court said that second marriage is not a single wrong but a continuing wrong to the first wife which is why she must be allowed to claim divorce on the ground of her husband entering into a second marriage.
The court upheld that under muslim law, taking a second wife is permitted but the keeping the first wife at her husband’s place with his second wife is not fundamental or inviolate. This means that husband is allowed to take a second wife, but the wife cannot be compelled to stay with her husband after he has taken a second wife as that is not mandatory under muslim law. Additionally, under ‘s. 23 of Indian Contract Act’[5], the first wife can enter into a contract with her husband restraining him to enter into a second marriage and such a contract would not be void. Hence, husband cannot compel his first wife to share his consortium with the second wife.
With respect to the second issue, appellant argued that cruelty means legal cruelty between husband and wife under the English law as Indian law does not have anything defined as cruelty. Test of cruelty will be based on universal and humanitarian standards. Cruelty means causing physical and mental agony to the wife and it should be of such a nature that it becomes unsafe and insecure for the wife to return to her matrimonial home. Appellant said that in this case, bringing second wife would not cause cruelty to the first wife as it would be safe for the first wife to return.
However, the court says that attention must be paid to the prevailing social conditions while determining cruelty. Mohammedan Jurisprudence by Sir Abdur Bahim provides that-
“The court in administering Mohammedan Law is entitled to take into account the circumstances of actual life and the change in people’s habits, and modes of living.”[6]
This shows that the Mohammedan law itself considers social conditions while deciding such matters and so it can be applied to this particular case. Today, taking second wife is seen as an insult to the first wife and people raise fingers on her. Society asks awkward questions to her and her reputation in the society automatically degrades. After this, compelling her to life in the altered circumstances will affect her mind and health.
Hence, the court will presume cruelty on the first wife if the husband brings a second wife. The burden of proof to show that taking second wife did not constitute any insult or cruelty to the first wife will be on the husband. By taking this stand, court is respecting husband’s second marriage but it will also not compel the first wife to return as it would be counted as cruelty towards her.
Personal Opinion:
The court brought one new dimension in the case that is ‘consideration of prevailing social conditions’ which I found quite interesting. According to this, if the society’s way of looking at a type of marriage would be ‘insulting’ to the first wife. Then, this factor would be taken into account while deciding the quantum of cruelty caused to the wife. I understand that this type of analogy takes away the importance of ‘a woman’s individual feeling’. This implies that even when a woman finds living with her husband against her self-respect, the court might take into account the society who may in some circumstances not insult or question her. Now, the specific question is whether court would look into the societal factors or an ‘individual’s autonomy before deciding such a matter.
The another factor which could be dealt immediately is whether a husband should be allowed to marry second time under muslim law. The court did not decide this issue because that was not the question before it. However, I believe that it is high time now, polygamy must be discontinued under muslim law. Years back, many men were killed in a war and the women were left alone. Hence, this law was introduced, so that every woman is taken care of and none of them are left behind. Hence, there was a specific intent behind introducing polygamy under muslim law. However, we do not need such a law today. The ratio between male and female is not alarming and many women have become independent. Hence, a reform must be brought. Establishing a presumption of cruelty is of no use when the law itself is immoral, unfair and cruel to the women.
However, I would also like to point out that the court was successful in balancing the rights of the woman and her husband in this situation where the muslim law of polygamy is not supposed to be touched or changed. Court is respecting husband’s second marriage and is also understanding wife’s decision who is unwilling to live with her husband. Court arrived at the decision by considering both the muslim law and equity. Hence, this judgement can be considered egalitarian to a great extent because of the establishment of ‘presumption of cruelty’. It might not stop second marriages under muslim law in India but would surely provide some remedy to the wives.
[1] Code of Criminal Procedure, s. 488.
[2] Koran IV. 3.
[3] Badu Mia v. Badrannessa (AIR 1919 Cal 511 (2)), Sheikh Moh v. Badrunnissa Bibee 7 Beng LR App 5 (sic).
[4] Ayutunnessa Beebee v. Karam Ali ILR 36 Cal 23.
[5] Indian Contract Act, 1972, s. 23.
[6] Mohammedan Jurisprudence, Sir Abdur Bahim, 1908 p.43- Tagore Law Lecture.
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