Mat. App. No. 82 of 2004. Case: Abdurahiman Vs Khairunneesa. High Court of Kerala (India)

Case NumberMat. App. No. 82 of 2004
CounselFor Appellant: K.P. Mujeeb, Adv. and As Amicus Curiae: M.P.M. Aslam, K.I. Mayankutty Mather, P.K. Ibrahim, C.S. Dias, Rajith and V.G. Arun, Advs. And For Respondents: T. Sethumadhavan, Pushparajan Kodoth and K. Jayesh Mohankumar, Advs.
JudgesR. Basant and M.C. Hari Rani, JJ.
IssueDissolution of Muslim Marriages Act, 1939 - Section 2; Muslim Personal Law (Shariat) Application Act, 1937; Civil Procedure Code (CPC); Constitution of India - Articles 13, 21, 44, 51A; Criminal Procedure Code (CrPC) - Section 125; Muslim Law
Citation2010 (1) KLT 891
Judgement DateMarch 01, 2010
CourtHigh Court of Kerala (India)

Judgment:

R. Basant, J.

  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.

  4. Parties went to trial on these contentions. The wife examined herself as P.W.1. She examined a witness as P.W.2 to prove the second marriage of her husband. That witness marked Ext.Al marriage certificate to prove the second marriage. The husband examined himself as R.W.I. He did not at that stage dispute the second marriage. In evidence, he took up an interesting stand unsupported by his pleadings that he had got married again with the consent of his first wife.

  5. The court below by the impugned order found the wife entitled to a decree for divorce as claimed. Accordingly, the court below proceeded to pass the impugned order.

  6. We are in this appeal primarily concerned with the decree for divorce under Section 2(viii)(f) of the Act. This Court entertained a doubt as to the standards applicable regarding equitable treatment of the wife in accordance with the injunctions of the Quran. Counsel for the parties -Advocates M/s. K.P. Mujeeb and Pushparajan Kodoth were heard. As this Court felt the need for independent and unbiased assistance on the question of law this Court requested some other counsel to offer assistance as amicus curiae. We have had the advantage of hearing Advocates M/s. M.P.M. Aslam, K.I. Mayankutty Mather, P.K. Ibrahim, C.S. Dias, Rajith, V.G Aruh and others. We place on record our appreciation for the assistance rendered by the counsel.

  7. The learned Counsel for the appellant challenges the decree for divorce under Section 2(viii)(f) of the Act primarily on the ground that there is no evidence of any inequitable treatment of the wife contrary to the injunctions of the Quran by the husband. The wife had asserted so. Is that assertion sufficient? How is the question to be considered and answered? What is the nature of evidence that the Court should look for and insist before a polygamous marriage is ordered dissolved on the grievance of the victim wife that she has not been treated equitably by her husband. This is the crucial question to be considered.

  8. To answer the crucial and vital question, we feel that a proper understanding of the concept of marriage in Islam, a proper appreciation of the concept of marriage relevant to the modern times and a proper appreciation of the impact of constitutional socialism and the fundamental right to life will have to be undertaken. The question cannot obviously be decided sitting in an island circumscribed by the language of Section 2(viii)(f) of the Act.

  9. Islam does not accept marriage as an indissoluble tie at all. In Islam marriage basically is a human contract. Though a human contract, it has solemn significance also. Parties enter matrimony voluntarily on their own free will. The dominant purpose of marriage is the enjoyment of life by the spouses. The spouses together must be able to enjoy life. Marriage in Islam is not a cage where the parties who have entered have no key to unlock the cage and liberate themselves even when the marriage does not beget happiness. Islam in its dynamic liberalism and humanism has always accepted the option of the spouses to get the marriage dissolved. Modern notions about dissolubility of marriage appear to have permeated into the Islamic thoughts and law of marriage and divorce from ancient times. Centuries back, this approach to marriage and divorce was conceived by Islamic thought and vision of life. We are not unmindful of the possibility of, and the actual misuse of, such liberal humanistic provisions by unprincipled individuals who pay only lip service to their faith in Islam. But the fact remains that Islam has prescribed an easier, simpler and expeditious approach to the idea of dissolution of marriage without intervention of courts and authorities. The gender justice conscious modernist may legitimately complain that the advantage of such easy procedure for dissolution has not been made available to the female partner in matrimony. Islam's was a universal message. The message emanated at a given point of time in history. It emanated from a particular context in Arabia at a certain juncture of history. The universal message did not express itself in a vacuum. The divine message was expressed in a given language and at a given point of time and geography. The quality of the antenna which receives the message and the sublimity of the receiver of the message is crucial in understanding the message. The universal message was to transcend time and geography. But it was to have relevance primarily in the societal context in which the message was received and relayed. In a war ravaged society with war widows, orphans and captives in abundance, the message of the Lord was received and declared. In that society at the relevant point of time, if a census were taken, the gender proportion of the fertile population must certainly have been grossly uneven. The male species, it must be realised was heavily outnumbered on account of the war. It must, at any rate, have been exceeding 1:2. The possibility of a wife wanting a decree for divorce must have been rare in the societal context. If hence emphasis was not laid on the right of a woman to get advantage of easy dissolution of marriage, it cannot be reckoned as gender bias of Islam against the fairer sex.

  10. If there be any reservation about the gender justice of Islam in marriage and divorce, we feel one should visit the story of Jameela which is referred to in at least two precedents as we ascertained it. In Mohammed v. Sainaba Umma 1987 (1) KLT 712 and Ammo Khatoon v. Kashim Ansari AIR 2001 Jhar 28, the learned Judges have referred to the case of Jameela. Thabit ibn Quais was the husband of Jameela. Jameela approached the Prophet and claimed divorce from her husband. She had no allegation to make against her husband. He was not guilty of any contumaciousness in matrimony; but she did not like him. For the simple reason that she did not like his physical appearance, she wanted to claim divorce. She complained to the Prophet that but for the fear of God she would have struck him on the face whenever he approached her. The Prophet ensured that she was done justice i.e., she got what she deserved. It was ensured by the Prophet that her husband divorced her.

  11. No person researching into the gender justice dimension of Islamic law in marriage...

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