Family Law

Abdurahiman v. Khairunnessa

2010 (1) KLT 891

Facts

Khairunnessa married Abdurahiman and four children were born from the marriage.
She alleged that over time the husband:
stopped maintaining her;
failed to perform marital obligations;
subjected her to physical and mental cruelty;
shifted her to inferior separate accommodation.
The husband later contracted a second marriage and began living with the second wife.
The first wife alleged that he did not treat both wives equally or equitably as required by the Quran.
She sought dissolution under several clauses of Section 2 of the Dissolution of Muslim Marriages Act, 1939, including Section 2(viii)(f).
The husband initially denied the second marriage.
During evidence, however, he claimed that the first wife had consented to it.
He did not clearly plead or prove that he treated the wives equitably.
The Family Court granted divorce, and the husband appealed.

Whether contracting a second marriage by itself entitled the first wife to divorce.
Who bears the burden of proving equitable treatment under Section 2(viii)(f)?
What does equitable treatment of co-wives require?

Section 2(viii)(f) permits a Muslim wife to obtain dissolution where the husband has more wives than one and does not treat her equitably in accordance with the Quran.
The second marriage is not by itself automatically prohibited under Muslim personal law.
However, equal treatment is a substantive obligation accompanying polygamy.
Once:
the second marriage is established; and
the first wife alleges inequitable treatment, the husband is best placed to prove that he has complied with the duty of equality.
Equality is not confined to identical financial payments.
It includes reasonable fairness in:
residence;
maintenance;
companionship;
time;
affection and marital attention, so far as humanly possible;
dignity and status.

The Court rejected the husband’s attempt to treat polygamy as an unconditional privilege.
The Quranic permission is linked with a strict obligation to act justly between wives.
A husband cannot rely upon the permission while ignoring the attached responsibility.
In this case, the first wife had lived with him for many years and had four children.
After the second marriage:
she was relegated to separate and inferior accommodation;
marital attention was substantially withdrawn;
the husband lived mainly with the second wife;
maintenance and companionship were neglected.
The husband produced no convincing evidence of an arrangement ensuring equality.
His claim that the wife consented to the second marriage was:
not raised in the original pleadings;
unsupported by reliable proof;
legally insufficient in any event to establish equitable treatment.
Consent to remarriage, even if proved, would not permit future discrimination.
The Court also recognised the practical evidentiary position.
Detailed information regarding income, expenditure, time allocation and provision for each household lies primarily with the husband.
It would therefore be unfair to require the first wife to prove every private act of inequality.
The established circumstances strongly showed that she was not treated as an equal spouse.
Continued co-wife status under such conditions amounted to cruelty recognised by the statute.

The wife’s decree of divorce was upheld.
The husband failed to establish equitable treatment after contracting the second marriage.
Polygamy is accompanied by a strict Quranic obligation of fairness between wives.
Use this case for: a first wife may obtain judicial divorce where the polygamous husband fails to prove equal and equitable treatment.