The Madurai bench of the Madras High Court recently gave an important verdict. Justice GR Swaminathan stated that a Muslim man marrying a second wife can be considered a cruelty to his first wife and ordered a man to pay Rs 5 lakh as compensation to his first wife.
A doctor-couple married under Islamic rites in 2010 and had a son. The wife later filed a case under the Protection of Women from Domestic Violence Act, 2005, alleging abuse. The trial court ordered the husband to pay Rs 5 lakh as compensation and Rs 25,000 monthly for their child’s maintenance besides granting a protection order. The husband’s appeal was dismissed, and he filed a revision petition under Article 227 of the Constitution, challenging the earlier decisions.
The Court reviewed the case, considering the strained marriage between the parties. The husband claimed to have sent three talaq notices (August 3, 2017, September 11, 2017, and November 11, 2017), leading to a divorce certificate from the Shariat Council of Tamil Nadu Thowheed Jamath on November 29, 2017. He then married another woman on January 28, 2018. However, the wife disputed receiving the third talaq notice, asserting that their marriage remained valid. The husband, a well-qualified doctor with substantial family property, did not contest the maintenance order for their minor child.
The primary issue before the High Court was whether the lower courts rightfully awarded the wife Rs 5 lakh as compensation for domestic violence. The husband had issued two talaq notices, dated August 3, 2017, and September 11, 2017. However, a dispute arose regarding the third talaq notice, with the husband claiming it was sent on November 11, 2017, while the wife denying that she received it.
Under the Islamic law, a marriage is dissolved only after the pronouncement of three talaq notices. Since there was no evidence to prove that the third talaq notice was served to the wife, the validity of the divorce was questioned. The wife consistently maintained that their marriage remained valid, as the necessary conditions for divorce were not met. The Court questioned the validity of the divorce, suggesting the husband’s second marriage may constitute domestic violence, entitling the wife to compensation.
The Court wondered whether a Muslim husband’s second marriage during the subsistence of the first marriage constitutes domestic violence under the Protection of Women from Domestic Violence Act, 2005. As per the definition of the term “domestic violence” set out in Section 3 of the Central Act 43 of 2005, any act or conduct of the husband which injures or causes harm, whether physical or mental to the wife shall constitute domestic violence. If a Hindu/ Christian/Parsi/Jew husband contracts a second marriage during the subsistence of the first marriage, it would constitute cruelty besides being an offence of bigamy.
“It would obviously be considered an act of domestic violence entitling the wife to claim compensation under Section 12 of the Act. Will this proposition apply in the case of Muslims? The answer is ‘Yes’. It is true that a Muslim male is legally entitled to contract as many as four marriages. For this legal right or liberty, there is only a limited Hohfeldian jural correlative on the part of the wife. The wife cannot stop the husband from entering into a second marriage. She, however, has the right to seek maintenance and refuse to be a part of the matrimonial household,” observed the High Court.
A division bench of the Karnataka High Court in Yusuf Patel vs Ramjanbi, held that though contracting a second marriage by a Muslim during the subsistence of the first marriage may be lawful, it would amount to enormous cruelty to the first wife. It was also held that the aggrieved wife can seek dissolution of marriage. Once it is concluded that marrying another woman during the subsistence of the first marriage would constitute cruelty, the corollary is that the first wife is entitled to claim damages and compensation.
The Supreme Court’s landmark judgment in Shamim Ara vs State of Uttar Pradesh (2002) provided clarity on the Islamic law of divorce, specifically the requirements for talaq. The top court held that Muslim husbands cannot unilaterally divorce their wives without reasonable cause and attempts at reconciliation. According to the judgment, talaq must be pronounced orally, rather than simply stated in writing. Mere assertion of previous talaq in a written statement is insufficient; evidence of actual pronouncement is necessary to validate the divorce. The Court further outlined the following essential requirements for a valid talaq under Islamic law:
- Reasonable cause for divorce must exist.
- Attempts at reconciliation must be made by two arbiters, one from each family.
- Talaq must be pronounced.
The Court also emphasized the importance of understanding Islamic law within its social and cultural context, recognizing that the Quran and Hadith emphasize justice, fairness, and compassion.
The Madras High Court noted that this judgment has been approvingly referred to in several subsequent decisions of the Supreme Court. Talaq, thus, involves a certain procedure. In the very nature of things, strict compliance has to be insisted upon. If the husband claims that he has divorced the first wife by properly pronouncing talaq three times, and it is disputed by the wife, the question arises if the marriage has been validly dissolved.
“The issue cannot be left to the unilateral determination of the husband. That would amount to the husband becoming a judge of his own cause. The only appropriate and legally permissible course would be to call upon the husband to obtain a judicial declaration that the marriage has been validly dissolved. So long as such a declaration has not been obtained from the jurisdictional court, the resultant effect is that the marriage is deemed to subsist. The burden is entirely on the husband to satisfy the Court that he had pronounced the talaq in the manner approved by law. It is he who must go to the court and obtain a declaration. This of course would be necessary only if the wife disputes the validity of the talaq pronounced by the husband,” the High Court said.
In a compelling testimony, the wife presented a devastating account of her experiences at the hands of the husband. She alleged unbearable cruelty, including instances of unnatural sex and other forms of mistreatment. As the sole witness for her case, the wife provided meticulous testimony, supported by 20 exhibits, meticulously documenting her suffering. Despite undergoing rigorous cross-examination, the wife’s testimony remained unwavering and uncontradicted. Conversely, the husband levied serious allegations against his wife, but conspicuously failed to take the stand or offer any evidence to substantiate his claims. Notably, neither the husband nor his counsel presented any witnesses or evidence to challenge the wife’s testimony. This stark contrast in the presentation of evidence weighed heavily in favour of the wife. The husband’s failure to provide any credible evidence or testimony undermined his allegations, while the wife’s testimony, bolstered by exhibits and unshaken conduct during cross-examination, lent significant credibility to her claims of cruelty and mistreatment. This compelling evidence formed the foundation for the High Court’s ruling.
The Shariat Council’s certificate of November 2017, validating the divorce (talaq), also raised several red flags. According to the certificate, the wife allegedly failed to cooperate with reconciliation efforts, citing letters sent on July 22, October 18 and November 11, 2017. However, the certificate’s legitimacy was found questionable, as it accepts the talaq pronounced by the husband, witnessed by his father and another person. The High Court expressed concerns regarding the impartiality of the father as a witness, highlighting potential bias. Moreover, the Shariat Council’s certificate was deemed invalid since it is a private body, not a court of law. This raised questions about the Council’s authority to validate divorces.
The High Court delivered a landmark verdict, upholding the rights of the first wife and recognizing the emotional harm caused by the husband’s second marriage without a valid divorce. The husband’s attempt to overturn the lower courts’ decision was met with dismissal, as the Court ruled that the husband failed to obtain a judicial declaration of divorce from his first wife, rendering his second marriage in January, 2018, invalid. Consequently, the marriage between the first wife and her husband remains legally valid. The Court further held that the husband’s actions constituted cruelty, causing significant emotional distress and pain to the first wife.
The ruling reaffirms the importance of protecting the rights and dignity of women in marriages. The lower courts’ decision to award Rs 5 lakh as compensation to the first wife was deemed justified, acknowledging the harm and suffering inflicted upon her.
This landmark verdict sends a powerful message that husbands cannot unilaterally dissolve marriages or engage in bigamous relationships without facing consequences. By upholding the first wife’s rights, the High Court has reaffirmed its commitment to protecting vulnerable individuals and promoting justice and equality in marital relationships.
—By Shivam Sharma and India Legal Bureau