AIR 1960 ALLAHABAD 684 ::1960 ALL. L. J. 523

Allahabad High Court

Hon'ble Judge(s): S. S. Dhawan , J

Muhammadan Law - Marriage - Husband taking second wife - Suit for restitution of conjugal rights against first wife - Discretion of court to grant relief - Defence of cruelty - Burden of proof - Presumption - Court will refuse decree if it is unjust and inequitable. In a suit for restitution of conjugal rights by a Muslim husband against the first wife after he has taken a second, if the Court after a review of the evidence feels that the circumstances reveal that in taking a second wife the husband has been guilty of such conduct as to make it inequitable for the Court to compel the first wife to live with him, it will refuse relief.(Para 7) Muslim Law as enforced in India has considered polygamy as an institution to be tolerated but not encouraged, and has not conferred upon the husband any fundamental right to compel the first wife to share his consortium with another woman in all circumstances. A Muslim husband has the legal right to take a second wife even while the first marriage subsists, but if he does so, and then seeks the assistance of the Civil Court to compel the first wife to live with him against her wishes on pain of severe penalties including attachment of property, she is entitled to raise the question whether the court, as a court of equity, ought to compel her to submit to cohabitation with such a husband. I....