Failure to provide maintenance and contracting a second marriage during the subsistence of the first marriage constitute grounds for divorce under the Muslim law.

A.Muhamed Mustaque, J.

This appeal is at the instance of the husband challenging a decree granted to the respondent-wife under the Dissolution of Muslim Marriages Act, 1939 .

2. The respondent-wife filed an original petition before the Family Court, Thalassery, seeking divorce under the Dissolution of Muslim Marriages Act on three grounds: (i) for non-providing maintenance for a period of two years, (ii) failure on the part of the husband to discharge a marital obligation and (iii) on the ground of cruelty. These statutory grounds are enumerated under Section 2 (ii), 2(iv) and 2(viii) of the Dissolution of Muslim Marriages Act, 1939 . The Family Court, on appreciation of the pleadings and evidence, found that the respondent made out a case for divorce on all the grounds as canvassed in the petition for divorce.

3. The marriage between the appellant and the respondent was solemnised in accordance with the Muslim Personal Law on 29.04.2010. In that wedlock, two children were born. It has come out in the evidence that the appellant has contracted another marriage and is living along with the second wife. It is also come out in evidence that the husband failed to provide maintenance for a period of two years prior to filing the petition. The Family Court found that contracting another marriage and ignoring the respondent who is the wife in the first marriage itself would constitute cruelty. It is seen from the impugned judgment that a criminal case is registered at the instance of the respondent alleging physical cruelty and demand of dowry.

4. In regard to the findings as above, the learned counsel for the appellant assailed and contended that there was no evidence as adduced by the respondent to establish the ground for divorce as above. However, when we specifically asked in regard to the second marriage, the learned counsel is not in a position to deny the fact.

5. When there is an allegation that the husband failed to provide maintenance to his wife for a period of two years. The burden is on the part of the appellant to prove the same by adducing cogent evidence. Absolutely, no evidence was adduced on the side of the appellant herein to prove the factum of providing maintenance to the respondent-wife. The husband also did not deny the fact that he has contracted the second marriage. It is a mandate under the personal law and the statutory provision that the husband is bound to maintain both wives in equal measure and discharge his obligation to both equally. The husband has no case that after contracting second marriage, he had resided or stayed or cohabited with the respondent-wife. That itself would show that he failed to discharge his obligation to the respondent-wife as per the law. Marrying another wife during the subsistence of first marriage and ignoring the first wife itself would amount to cruelty. The husband also failed to perform marital obligations to the respondent wife. The refusal to cohabit with the first wife itself would constitute mental cruelty. We, in such circumstances, find no reason to interfere with the impugned judgment. Accordingly, the Mat.Appeal is dismissed.

No costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE