Muslim husband can be denied or not restitution of conjugal rights if he performs second marriage

On consideration of facts and circumstances revealed that the Muslim husband has not treated his wife in accordance of Holy Queen which leads to conclusion that he has dis-entitled himself to a decree of restitution of conjugal rights. When the husband proceeds against for wife for restitution conjugal rights and also contracted second marriage during the pendency of the suit for restitution of conjugal rights and in the instant case, the wife also complained of physical cruelty to extract money, after 18 years of matrimonial life. Then the burden of proof is on the plaintiff-husband who takes a second wife to explain his action to prove that, his taking of a second wife involves no cruelty to the first wife, by adducing necessary evidence to that effect. For instance, he may rebut the presumption of cruelty by proving that his second marriage took place on the suggestion of first wife otherwise the Court will presume that under modern social conditions that the action of the husband in taking second wife, during pendency of the suit for institution of conjugal rights involves cruelty to the first wife then it could be inequitable for the Court to ask the wife to live with such a husband. In the circumstances, it could not be unreasonable to hold that after the plaintiff-husband contracted second marriage, the appellant wife is reasonable and justifiable in staying away from her husband. This Court while bearing in mind, the right of the Muslim husband as to contract of marriage more than once, however, it has to be borne in mind that the decision in a suit for restitution of conjugal rights does not entirely depend upon the right of the Muslim husband. The Court should also consider whether it make it in-equitable for it to compel the wife to live with her husband. Our notions of law in that regard have to be held in such a way so as to bring them in confirmity with modern social condition. There is no law or a rule which compel the Court always to pass a decree in a suit for restitution of conjugal rights in favour of the husband. A duty is caused upon to the Court to find out whether it could be just and reasonable for the Court to deny the said relief to the plaintiff Muslim husband if the proved circumstances are such that it could be inequitable to do so for a muslim woman. 25. On consideration of the evidence and the pleadings thereon coupled with the admission of the P.W.1 and the D.W.1, this Court finds that the action of the plaintiff-husband is not bonafide and the fact that the plaintiff-husband has taken the second wife during the pendency of the suit also lead to the irresistible conclusion that he disqualified for a decree of restitution of conjugal rights and reasoning given by the lower Appellate Court is not sustainable in law. BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.06.2017 CORAM MR.JUSTICE RMT.TEEKAA RAMAN S.A.(MD) No.62 of 2006 Kothar Beevi @ Badrunnisha vs K.Aminudeen