Spread the love
Citation1959 SCC OnLine All 150: 1960 All LJ 523:
Date of Judgment 29/08/1959
CourtAllahabad High Court
Case TypeCivil Appeal
BenchHon’ble Mr. Justice S. Dhavan
ReferredCode of Criminal Procedure, 1973; Section 488Indian Contract Act, 1872; Section 3, 23Code of Civil Procedure, 1908; Order 41, Rule 11 
Cases ReferredMoonshee Ruheem Vs Shumsoonissa Begum 11 Moo Ind App 55 (609);Abdul Kadil Vs Salima, ILR 8All 149 (FB);Badu Mia Vs Badrannesa, 40 Ind Cas 803: (AIR 1919 Cal 511 (2)).;Sheikh Moh. Vs Badrunnissa Bibee. 7 Beng LR App 5 (sic),Badarannissa Bibi Vs Mafiattala, 7 Beng LR 442. Ayatunnessa Beebee Vs Karam Ali, (1909) ILR 36 Cal 23;Hamid Hussian Vs Kubra Begum, ILR 40 All 332: (AIR 1918 All 235);Khurshid Begum Vs Abdul Rashid, AIR 1926 Nag 234.Mt. Sofia Begum Vs Zaheer Hasan, AIR 1947 All-16.Simpson’ Vs Simpson, (1951) 1 All ER 955Nawab Bibi Vs Allah Ditta, AIR 1924 Lah 188 (2) 


This is an appeal from a Muslim spouse challenging the decision of the learned District Judge to dismiss his claim for the restoration of his marriage to his first wife, who abandoned him after he married a second woman and accused him of being remorseless towards her. The plaintiff lived with the defendant, Smt. Asghari, for a considerable amount of time after they were married in 1950. When things went south at that point, his wife finally left him to live with her parents. He did not try to find a method to win her back, so he married another woman instead. According to Section 488 of the Criminal Procedure Code, the first wife, who is a respondent, submitted a maintenance application.

The husband then sued her for the restoration of their marital rights. It was said that she had been duped by her husband, who had an extramarital relationship with a different lady, whom he later married. She claimed that he was accusing her of being unkind. The knowledgeable Munsif dismissed the husband’s lawsuit and ruled that the wife had failed to establish both that she had been cruelly treated and that the husband had not committed acts of cruelty that would have prevented him from obtaining a judgement for the restoration of their conjugal rights. According to him, the mere fact that the husband had married a second woman did not automatically imply that Smt. Asghari had been subjected to unfair treatment by him. He was also persuaded by the husband’s justification that he had not brought his second wife into the house with Smt. Asghari. 

After hearing the appeal, the learned District Judge in Rampur set aside the trial court’s decision and dismissed the husband’s claim along with costs. He asserted that Itwari had only filed his lawsuit for the restoration of conjugal rights as a counterblast to the wife’s Section 488 Cr. p. C. claim for maintenance and that his lack of action after the wife had left him and been living with her parents for so long was proof that he had never truly cared for her. Considering this situation, he said, “I am willing to believe Smt. Asghari evidence that she was ill-treated and turned out by her husband and that the latter is now putting up a show to get her back only to escape from the liability to pay maintenance allowance.”

The Appellate Court overturned the Trial Court’s decision to dismiss the case. In the second appeal, the case was then brought before the Allahabad High Court.


  1. Whether the appeal is maintainable or not?
  2. Whether the husband has been guilty of cruelty?
  3. Whether the suit filed by the husband for restitution of conjugal right only as a counter-action to the wife’s claim for maintenance under Section 488 of Code of Criminal Procedure, 1973?


The fact that the husband had taken a second wife was brought up, and Smt. Asghari had suffered unfair treatment at his hands because of it. She was also affected by the husband’s attitude because he had not obliged his second wife to live in his home. The idea that if the wife felt mistreated by her husband’s second marriage, she should have filed a petition for divorce and admitted that she had not done so, leading to the strange and contradictory idea that the husband’s demand for a second wife is a good reason for the first wife to file for divorce and terminate all of the husband’s rights, but not a reason for a challenge the husband’s suit for affirmation of similar rights under a similar marriage. Because every Muslim is permitted to have up to four wives, the simple fact that the husband has taken a second wife is not evidence of cruelty.


Her better half had exposed her after forming an illicit relationship with another woman, who he later married. She claimed that he had physically and mentally tortured her by beating her and depriving her of her jewelry. In addition, he had not paid her dower. In order to counteract the wife’s claim for maintenance under Section 488 of the Criminal Procedure Code, the husband filed the lawsuit for the restoration of conjugal rights. He did not try to find a method to bring the ex-spouse back after she left and spent so much time living with her parents, and his prolonged silence suggested that he never really cared for her.


If the court determines, after reviewing the evidence, that the circumstances indicate that the husband engaged in conduct that would make it discriminatory for the court to order the first wife to live with him, it will deny relief in a suit brought by a Muslim husband seeking the restoration of his conjugal rights against the first wife after he had taken a second wife. As a result, the woman cannot be made to live with her husband.

Polygamy was regarded by Muslim law imposed in India as an institution that may be tolerated but not supported. The right of the husband to compel his wife to share his consortium with another woman is not a basic one. The Mohammedan Law allows a Muslim man to have up to four wives, but this option has never been promoted. The court will accept the sacredness of the second marriage but will never force the first wife to live with him if the husband marries the second woman against the will of the first wife and simultaneously requests assistance from the Civil Court to compel the first wife to live with him.


According to the Supreme Court, the husband cannot force the wife to reside with him. Any coercion used by the husband should be viewed as cruel. According to Order 41, Rule 11 of the Code of Civil Procedure from 1908, the High Court of Allahabad determined that the appeal had been filed fraudulently and dismissed it. In agreement with the District Judge’s conclusion that forcing the first wife to remain with such a spouse would be unfair. The lower appellate court concluded that the appellant never truly loved his first wife and just brought his reparation lawsuit to deny her maintenance request. Given the situation, his lawsuit was invalid and properly dismissed.

Finally, the appellate court overturned the trial court’s judgement and concluded that the wife had been abandoned and neglected by the husband for a long period of time, believing her accusation of acts of cruelty committed by the husband. Given the situation, I agree with the District Judge’s assessment that forcing the first wife to remain with such a spouse would be unfair. In accordance with Order 41, Rule 11, C. P. C., the appeal is denied.





This Article is written by Anish Kumar student of Presidency University, Bangalore; Intern at Legal Vidhiya.


Leave a Reply

Avatar placeholder

Your email address will not be published. Required fields are marked *