Muslim women can claim damages from bigamous husband, rules Madras High Court

A view of the Madurai Bench of the Madras High Court. File photo
| Photo Credit: R. ASHOK

A Muslim woman is entitled to claim damages/compensation from her bigamous husband since his act would amount to inflicting mental harm on her and squarely fall under the definition of the term ‘domestic violence’ under the Protection of Women from Domestic Violence Act of 2005, the Madurai Bench of Madras High Court has held.

Justice G.R. Swaminathan also held that if a Muslim woman disputes the validity of the triple talaq (divorce) pronounced by her estranged husband, the latter must necessarily approach the courts and obtain a judicial declaration after satisfying the judge to have pronounced the talaq in the manner known to law.

He further ruled that the Shariat (canonical law based on the Quran) councils of no Jamath (a congregation of those who follow Islam) could deliver judgments on divorce. “Only courts duly constituted by the State can deliver judgments. Shariat council is a private body and not a court,” he stressed.

Justice Swaminathan’s verdict was delivered while dealing with a domestic dispute between a doctor couple. They had got married as per Islamic rites and customs in 2010 and had a son. In 2018, the woman, in government service, lodged a complaint under the 2005 Act.

A Judicial Magistrate, in 2021, allowed her plea and directed the husband to pay a compensation of ₹5 lakh to his wife for the domestic violence inflicted on her. A sessions court upheld the order in 2022 and hence, the husband had approached the High Court by way of the present criminal revision petition in 2023.

The petitioner claimed to have issued three talaq notices to his estranged wife — on August 3, 2017, September 11, 2017, and November 11, 2017 — before marrying another woman. However, the woman doctor claimed that the third notice was not served on her and therefore, asserted that her marriage continued to be in subsistence.

After hearing both sides, the judge pointed out that the definition of the term ‘domestic violence’ as set out in Section 3 of the 2005 Act “would include any act or conduct of the husband which injures or causes harm, whether physical or mental to the wife.” He said bigamy would amount to causing mental harm.

“If a Hindu/Christian/Parsi/Jew husband contracts second marriage during the subsistence of the first marriage, it would constitute cruelty besides being an offence of bigamy. It would obviously be considered an act of domestic violence entitling the wife to claim compensation under Section 12 of the Act. Will this proposition apply in the case of Muslims? The answer is yes,” the judge wrote.

He went on to observe: “It is true that a Muslim male is legally entitled to contract as many as four marriages. For this legal right or liberty, there is only a limited hohfeldian jural correlative on the part of the wife. The wife cannot stop the husband from entering into a second marriage. She, however, has the right to seek maintenance and refuse to be a part of the matrimonial household.”

Holding that a Muslim woman was entitled to claim compensation and damages for the charge of bigamy, the judge said in the present case, the revision petitioner had not produced any evidence to prove that the third talaq notice was served on his estranged wife.

Though the petitioner had relied upon a “divorce certificate” issued by the Shariat council of Tamil Nadu Thowheed Jamath on November 29, 2017, the judge said it “makes a shocking reading. It faults the respondent herein for not extending her cooperation.”

He also observed: “The certificate issued by the Chief Kazi of the Shariat council of Tamil Nadu Thowheed Jamath concludes that Shariat judgment is accordingly delivered. Only courts duly constituted by the State can deliver judgments. Shariat Council is a private body and not a court.”

Wondering how the revision petitioner’s father could have stood as witness for the pronouncement of the talaq before the Shariat council, Justice Swaminathan wrote: “There is a saying in Tamil: ‘Velikku onan satchi, vendhadhuku chockan satchi’’, meaning a chameleon is the witness of the hedge and a cook boy will testify to the food having been well boiled. A father being a witness for his son’s pronouncement of the talaq is akin to this.”