Itwari vs. Asghari case clarified the fact that the restitution of conjugal rights cannot be made without reasonable cause. This is very important to protect the rights and uphold the interests of women in male dominating society.
FACTS OF ITWARI vs. ASGHARI CASE:
- The plaintiff, Itwari, who was married to the defendant, Asghari in 1950 lived together for a while.
- After some time, things turned out badly, and his wife left him and stayed with her parents.
- The plaintiff found no way to bring his wife back, so he got married to another woman.
- The first wife applied for maintenance under Sec 488 of CrPC (now Section 125 of CrPC after amendment in 1973).
- To answer the same, the husband sued her for restitution of his conjugal rights.
- She alleged the plaintiff turned her down by forming an illicit relationship with another woman and subsequently married that woman.
- The respondent alleged she is being cruel to him. The learned Munsif decreed the suit filed by the husband also direct the respondent’s father and brother not to stop her from going back to him.
- The Trial court decreed the suit filed by the husband whereas the Appellate Court reversed the findings of the Trial Court.
- The husband made the second appeal before the Allahabad High Court.
- Whether the appeal made maintainable?
- Whether the husband guilty of cruelty?
- Whether the conduct of the husband in marrying a second wife is any ground for the first wife to refuse to live with him or for dismissing his suit for restitution of conjugal right?
The honorable Judge present to hear Itwari vs. Asghari case was Justice S.S Dhavan. The judge was of the opinion that:
- In a suit for restitution of conjugal rights by a Muslim husband against the first wife after he has taken a second wife if the Court after an assessment of the evidence feels that the conditions reveal that in taking a second wife the husband has been guilty of such behavior as to make it discriminatory for the Court to compel the first wife to live with him, it will refuse relief. The wife therefore cannot be compelled to live with her husband.
- Muslim Law enforced in India has considered polygamy as an institution that can be tolerated but not encouraged. The husband has no fundamental right to compel his wife to share his consortium with another woman.
- The Mohammedan Law permits a Muslim man to have several wives up to a limit of four, but this right has never been encouraged. If the husband takes the second wife against the wishes of the first wife and also seeks help from the Civil Court to compel the first wife to live with him, the court will respect the sacredness of the second marriage but will never compel the first wife to live with him.
The honorable Court held the husband can not compel the wife to live with him. Any compulsion made by the husband is to be considered cruelty. Therefore, the appeal for restitution of conjugal rights has been dismissed.
When there is any reasonable cause for the separation between the spouses, the court does not grant the decree of the restoration of conjugal rights.
For a reasonable explanation, there are no hard and fast rules about it, and the court may decide it through justice, equity, and good conscience.
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