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"In case of more than one marriage, refusal to cohabit and perform marital obligations with the first wife is tantamount to the violation of the Quranic injunctions", observed Kerala High Court while dissolving the marriage between a Muslim woman and her husband. 

Setting aside a Family Court's judgment whereby the wife had been refused a decree of divorce, the bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas said, 

"If there exists a marriage with another lady during the subsistence of the previous marriage, the burden is on the husband to prove that he had treated both wives equitably in accordance with the injunctions of Quran which commands equal treatment of the wives."

The Court had taken note of the fact that the husband had stayed away from his first wife for more than five years before the institution of her divorce petition in the year 2019, thereby, he had deprived her of cohabitation.

The wife also had submitted in her petition that her husband had been living abroad where he had contracted a second marriage with another woman while their marriage was existing. She had also alleged that from 2014 onwards, he had even stopped visiting her.

However, in her divorce petition, the wife had not mentioned Section 2(viii) (f) of the Dissolution of Muslim Marriages Act, 1939 (the Act) as a ground.

Taking note of this submission and flaw, the Court opined that mere omission to quote a statutory provision will not disentitle the claim for divorce on that ground if there are sufficient averments in the petition.

The Court stated that there were averments in the wife's petition regarding the husband's second marriage which in fact had not been denied by the husband in his reply. 

Therefore, considering the facts and circumstances of the case, the Court held that the husband's staying away from the first wife for five years itself showed that he had not treated both wives equally which was a clear violation of the Quranic injunctions.

Apart from the abovesaid ground, the Court also agreed with the wife's allegations against her husband that he had failed to perform his marital obligations.

It highlighted that the Family Court had carried on an assumption that providing maintenance (which the husband had occasionally sent from abroad) would be sufficient to prove that the husband had performed marital obligations.

The High Court held that the Family Court had erred, and its finding was erroneous and could not stand the scrutiny of the law.

The Court pointed out that the appellant's husband had not visited her since 2014 and this fact was not even denied by the husband. 

It stated that even the husband himself had submitted that he was forced to marry another lady for the reason that his first wife had refused to have a sexual relationship with him.

Further stressing that there was absolutely no evidence on record to show that the husband was willing to cohabit, the Court, accordingly, held that the husband had failed to perform the marital obligations, which was a valid ground for divorce under Section 2(iv) of the Act and allowed the wife's appeal by granting her divorce under Sections 2(iv) and 2(viii) (f) of the Act. 

Cause Title: Ramla vs Abdul Rahuf