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No relief of restitution of conjugal rights to husband who remarried during pendency of the suit

  • Right to conjugal rights or right to stay together can be enforced against the husband or the wife who is living away from the spouse without any good reason. One can file a suit for restitution of conjugal rights and if the suit is successful then the married couple will be required to stay together.  

    In the instant matter, the marriage was solemnized between the parties on 20.09.1981 and subsequently, the appellant-wife has left the matrimonial home without any justifiable cause and hence the husband filed a suit for restitution of conjugal rights.

    The High Court of Madras refused to grant the relief of restitution of conjugal rights to a man who had remarried during the pendency of the suit.

    When the husband filed the petition before the trial court of Tirunelveli, the court granted the relief of restitution of conjugal rights ignoring the fact of a second marriage by the husband and observed that being a Muslim, the husband was permitted to contract more than one marriage.

    However, the Madras High Court, accepted the arguments presented by the wife and observed, “When the husband proceeds against for wife for restitution conjugal rights and also contracted second marriage during the pendency of the suit for restitution of conjugal rights and also contracted second marriage during the pendency of the suit for restitution of conjugal rights and in the instant case, the wife also complained of physical cruelty to extract money, after 18 years of matrimonial life. Then the burden proof is on the plaintiff husband who takes a second wife to explain his action to prove that, his taking of a second wife involves no cruelty to the first wife, by adducing necessary evidence to that effect.”

    After considering the evidence the Court ruled in the favor of the wife and Justice RMT Teeka Raman observed  “In the circumstances, it could not be unreasonable to hold that after the plaintiff-husband contracted a second marriage, the appellant wife is reasonable and justifiable in staying away from her husband. This Court while bearing in mind, the right of Muslim husband as to contract of marriage more than once, however, it has to be borne in mind that the decision in a suit for restitution of conjugal rights does not entirely depend upon the right of the Muslim husband. The Court should also consider whether it make it inequitable for it to compel the wife to live with her husband. Our notions of law in that regard have to be held in such a way so as to bring them in conformity with modern social condition”.


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