IMPORTANT POINT
A husband in a polygamous marriage must treat all wives equally, and failure to maintain a wife can constitute grounds for dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939.

JUDGMENT :

RMT.TEEKAA RAMAN, J.

PRAYER : The Appeal is filed under Section 96 of C.P.C. against the Judgment and Decree passed in O.S.No.30 of 2021, dated 24.03.2023 on the file of the Family Court, Tirunelveli.

The Appeal is directed against the Judgment and Decree passed in O.S.No.30 of 2021, dated 24.03.2023 on the file of the Family Court, Tirunelveli.

2. The husband has preferred this appeal against the order of dissolution of marriage passed by the Family Court, Tirunelveli.

3. For the sake of convenience, the parties are referred to as defendant/husband and plaintiff/wife.

4. The wife/plaintiff, the respondent herein, filed a suit under Section 2(ii) (iv)(viii)(a)(d) of Dissolution of Muslim Marriages Act, 1939 for declaration by dissolving the marriage between her and the appellant/defendant which was solemnized on 03.01.2016, on the ground of cruelty and not treating equivalent to the second wife of the husband.

5. The prime allegations in the said plaint are as follows:

5.1. During her pregnancy, the husband and his mother not treated the plaintiff well, and they are behind the jewels given by the parents of the plaintiff. Without considering that the plaintiff is pregnant, the mother of the husband/defendant scolded her for not draping the saree properly, and also the husband has taken photos of the plaintiff and the defendant when they are in-mate position. When the plaintiff/wife went to Chennai to live along with her husband, during September 2016, a child was born to the parties. However, the child died on the next day. On that score, the husband's sister abused the wife by stating that she could solemnize another marriage of the defendant/husband, since the plaintiff/wife has no child.

5.2. Further, during their stay, the father of the defendant insisted that the doors of the bed room should not be closed and the defendant also insisted the plaintiff to eat foods that were allergic to her and as a result she suffered vomiting and headache, further he used to throw the meal plates on the face of the plaintiff by stating that the food prepared by her were not of his liking and he compared her with one Nasima, who is his relative and caused mental cruelty to her. The plaintiff/wife has to look after the house and hence, unable to bear the cruelties of the defendant/husband, the plaintiff came to her parents home and however, the defendant/husband threatened the plaintiff/wife by uttering that if she is not coming back to live with him, he will solemnize another marriage and also could publish photographs taken by him at the time of close intimacy through internet and also caused cruelties to the family members of the wife alleging that he will murder the family members of the wife.

5.3. Unable to maintain herself, the plaintiff filed M.C.No.71 of 2019, which was allowed in her favour and also filed a complaint in D.V.C.No.43 of 2009 to bring back the jewels and household articles, which is kept to be pending at the time of the trial of the above suit. In the meantime, the defendant/husband appears to have filed O.S.No.25 of 2019 for the relief of restitution of conjugal rights and the same was allowed on 04.05.2021 and immediately on 05.09.2021, the defendant/husband married another lady and ill-treated the plaintiff/wife and not treated the plaintiff/wife on par with the second wife. Hence, the suit for dissolution of marriage by wife.

6. The defendant/husband filed written statement denying various averments made therein an interalia contended that the husband had filed O.S.No.25 of 2019 for the relief of restitution of conjugal rights and the same was allowed on 04.05.2021 and as the wife does not comply the said judgment and hence, as per Islamic Law, he had contracted marriage with another woman since the Islamic Law permits Polygamous marriage and therefore, merely because the defendant/husband married another woman, the plaintiff/wife cannot seek the relief of divorce and the defendant is paying the maintenance amount