Itwari v Asghari (Allahabad High Court, 1960) — there is no "Muslim cruelty"; a husband who takes a second wife must explain himself

The 1939 Act's cruelty ground (s. 2(viii)) and the husband's suit for restitution of conjugal rights meet in this case. Dhawan J.'s two sentences — that cruelty has no religious variants, and that a second marriage today calls for explanation from the husband — are quoted in every answer on cruelty in Muslim law.

Itwari married Asghari about 1950. The marriage broke down; she went to her parents; he took no steps to bring her back and married another woman. She applied for maintenance (under s. 488 of the old Code); he then sued her for restitution of conjugal rights, and impleaded her father and brothers. She alleged that he had turned her out, formed an illicit union with the woman he later married, beaten her, taken her ornaments, and not paid her dower. The Munsif decreed restitution, holding cruelty unproved; the District Judge reversed, finding cruelty and holding the suit mala fide. The husband appealed, arguing that taking a second wife is no cruelty because Muslim law permits four.

Whether a Muslim husband's taking a second wife, with the other circumstances, could amount to cruelty entitling the first wife to refuse to live with him and defeating his suit for restitution; and what "cruelty" means for Muslim spouses.

Dhawan J. held that "Indian law does not recognise various types of cruelty such as 'Muslim' cruelty, 'Christian' cruelty, 'Hindu' cruelty, and so on"; the test is universal and humanitarian — "conduct of the husband which would cause such bodily or mental pain as to endanger the wife's safety or health". While Muslim law permits a second marriage, the court would look at the circumstances: in present conditions "the onus today would be on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first". Restitution being an equitable remedy in the court's discretion, the appellate court's finding that the husband "filed his suit for restitution only to defeat her application for maintenance" made "his suit mala fide and rightly dismissed"; the specific acts of cruelty and years of desertion were believed, and "it will be inequitable to compel the first wife to live with such a husband". The appeal was dismissed.

1. Cruelty is one standard for all communities: conduct causing bodily or mental pain that endangers the wife's safety or health.
2. A Muslim husband's second marriage is not cruelty per se, but the burden is on him to show it involved no insult or cruelty to the first wife.
3. A restitution suit brought mala fide — to defeat a maintenance claim — will be dismissed; the remedy is discretionary and equitable.