Second Marriage By Muslim May Be Lawful; But It Causes Enormous Cruelty To First Wife: Patna HC
The Patna High Court observed that merely because contracting a second marriage is lawful under the Muslim Shariat Law, it does not become justifiable in married life.
The court said that it causes ‘enormous’ cruelty to the first wife.
The Petitioner-husband sought a pre-arrest bail in a complaint case registered for the offences punishable under Sections 323, 498A and 406/34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
The Bench of Justice Purnendu Singh observed, “It is not in dispute that the petitioner has contracted a second marriage without divorcing his first wife, whom he legally wedded. However, he has failed to establish his contention that the entry of the second lady to the existing matrimony is with the prior consent of the respondent-wife; it is a matter of common knowledge that, women regardless of their religion and socio-economic conditions, detest their husbands contracting a second marriage; therefore, the proof of consent requires cogent evidence which is militantly lacking in this case…It must be borne in mind that merely because an act is lawful, it does not per se become justifiable in married life. Contracting a second marriage by a Muslim may be lawful, but it more causes enormous cruelty to the first wife.”
Advocate Brajesh Kumar Singh appeared for the Petitioner whereas APP Ajit Kumar appeared for the Respondents.
The bail application of the petitioner was heard and he was granted pre-arrest bail on May 15, 2023. Pursuant to the remand order passed by the Apex Court, the present bail application was heard on merits in compliance with the direction.
The Husband, submitted before the Court that the wife was carrying a foetus of approximately 19 weeks at the time of marriage, for which he had filed a complaint for cheating. Therefore, he said it had become difficult for him to live with her. The Husband had also contracted a second marriage without giving ‘talaq’ to the complainant-wife.
The wife alleged that the husband had demanded a gold chain and ring, and due to non-fulfilment he tortured, assaulted and subjected her to various forms of cruelty. The Wife filed a counter affidavit before the Supreme Court in which she submitted the list of household items, dowry, stridhan and other articles that were given to the husband.
The Court held, “I find that the petitioner cannot be allowed to play with the dignity and life of a woman at his own will considering the fact that in I.A. No. 01 of 2024, he has categorically stated that he is ready to go for one-time settlement, which I find that the said statement has been made to obtain bail from this Court and in want of any legal steps taken in that regard the conduct of the petitioner at the same time cannot be appreciated.”
The Court also relied on Mulla’s Principles of Mohammedan Law, 22nd Edn. which states the position of law that Shariat permits a Muslim to contract more than one marriage as many as four. The Court also said, “It must be borne in mind that merely because an act is lawful, it does not per se become justifiable in married life. Contracting a second marriage by a Muslim may be lawful, but it more causes enormous cruelty to the first wife.”
Accordingly, the Court refused to enlarge the petitioner-husband on pre-arrest bail and dismissed the bail application.
Cause Title: Md. Irshad Kuraishi v. The State of Bihar and Anr.
Appearances:
Petitioner: Advocate Brajesh Kumar Singh
Respondents: APP Ajit Kumar and Advocate Madhurendra Kumar