Today’s Highlight

Polygamy

Muslim co-wife can claim divorce on her mere stating that her husband has treated her inequitably, as explained in “What is the Price of Polygamy?”              

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What is the Price of Polygamy?

By John B. Monteiro

 Then let thy love be younger than thyself,

Or thy affection cannot hold the bent:

For women are as roses, whose fair flower

 Being once displayed, doth fall that very hour.

 - William Shakespeare, English dramatic poet (1564-1616).

 Polygamists take their cue from Shakespeare and go on adding younger dames to their harem. Islam allows four wives at a time subject to conditions. Apparently this involves the consent of the existing wife/wives and that all are treated equally. In a male-dominated society, where the woman is zero without the backing of the husband, consent can be cooked up. Even the equitable treatment can remain an unenforceable concept. Against such an unpromising situation Indian higher judiciary has come to the aid of the Muslim damsel in distress and laid down the law – even if it is only case law. But, first the facts.

 A Division Bench of the Kerala High Court recently declared that courts must accept the assertions of a Muslim wife in a polygamous marriage that she has been treated inequitably by her husband in claims for divorce under Section 2 (viii) (f) of the Dissolution of Muslim Marriage Act, 1939. The  Bench gave the ruling while dismissing an appeal filed by a Muslim man against a single judge’s verdict upholding the lower court’s order for divorce on a petition filed by his wife.

 The court held that in a claim for divorce under the above-noted section of the Act, it was the assertion of the woman that mattered. She was the best judge to decide whether she has been treated equitably or not. When it was or proved that there has been a second marriage and the wife asserted that she had been treated inequitably and that she would like to walk out of such a marriage, no court could fetter her right to quit the marriage. Whether there was cross-examination or not, the assertion would have to be accepted. The Koran mandates that she must be ‘dealt with fairly and justly’. If she perceived the treatment to be unjust and inequitable, her assertion would have to be accepted totally.

 Setting the issue in proper perspective, the court pointed out that a Muslim husband had the right to walk out of the marriage. “At least when faced with the ignominy of polygamy, the wife must on her assertions be able to secure an order through court to quit such a marriage. Her assertions need not be tested on any other touchstone. It is, of course, true that Section 2 (viii) (f) of the Act does not recognize a polygamous marriage by itself as a ground for divorce; but read reasonably, the provision concedes to the wife the right  to walk out of the marriage if she is satisfied that she has not been treated equitably in such marriage”. The Bench said the fact that she had consented to a polygamous marriage, that she had lived with her co-wife happily for some time or that she had entered into  a polygamous marriage with a ‘consciousness’ that she would be a second wife were ‘all no effective defences’ in a claim for divorce.

 Further putting the subject into context of the easy option available to Muslim husbands to get instant divorce through the triple “talaq” route, the Bench observed that when it came to the unilateral right of the Muslim man to divorce his wife, he need not reveal intimate confidential details in the realm of privacy to anyone including the court or an outsider. He could divorce her  without making any allegations or without the intervention of courts. (It may be added that in this internet age, coward husbands, who cannot pick up courage to pronounce talaq in person, have been resorting to e-mail for delivery of message).

 Polygamy has light sidelights. In the case of one Hassan, he lodged his two wives separately and took turns to enjoy their favours. Past middle age, Hassan had salt and pepper hair. When he visited the first and older wife, she used to pluck his black hair so that he does not remain attractive to her younger co-wife. When he visited his younger second wife, she used to pluck out his grey hair so that he remained youthful and attractive to her. Hassan of two wives ended up bald! What would have been the scenario if Hassan had married four wives allowed to him?

 Finally, Artemus Ward tells us that Shakespeare, with whom we began this column, endorses polygamy: He speaks of Merry Wives of Windsor; how many wives did Mr. Windsor have?

 Jokes aside, the subject is open to many views. What are yours? Over to you.