Deserted wife now claims maintenance and files dv and other case after 1 & half year
ZAHEER HAMID KHAN
(Querist) 20 February 2013
This query is : Resolved
Hi,
I got married on 22nd April 2011 as per Muslim rights and rituals .After 6 months of my marriage my wife had deserted me and my family for which i have filed a petition under restitution of conjugal rights to bring her back to her matrimonial home but to the reply of my petition she demanded for seperate accommodation with a personnel monthly maintenance of Rs15000/- soon after her reply i got married to a non muslim girl in Feb 2012 under Special marriage act now in Dec 2012 my first wife had filed a case of Domestic violence & 498A 406 on me and my family how ever the case of RCR in Bandra court is still pending for the hearing. I need to know is getting married for second time without divorcing the first wife is understood as cruelty and violence against the first wife as per law or what is the best way to respond on such allegation as now the first wife had misused and filed sec 498A 406 34 along with Domestic violence against me and my family. Please help me.
ajay sethi
(Expert) 20 February 2013
1)what are the allegations made in DV case :?
2)if the only allegations are that you have married agin during the subsistence of earlier marriage then your case ought to be that she had deserted you without sufficent cause .
as she refused to stay with you and did not return inspite of repeated reminders you had no option but to remarry .
3)please note that if you remarry your first wife can sue you for divorce
In the decision reported in Lily Thomas v. Union of India,
A.I.R. 2000 S.C. 1650, the Apex Court held that inspite of the first
marriage, a second marriage can be contracted by the husband under
Mohammedan Law subject to certain religious restrictions. In paragraph
61 of the judgment, Justice R.P. Sethi observed that Muslim Law is based
upon a well recognized system of jurisprudence providing many rational
and revolutionary concepts which could not be conceived by the other
systems of Law in force at the time of its inception. It is further observed
that the concept of Muslim law is based upon the edifice of Shariat and
that Muslim Law as traditionally interpreted and applied in India permits
more than one marriage during the subsistence of one and another though
capacity to do justice between co-wives in law is condition precedent and
that even under Muslim Law plurality of marriages is not unconditionally
conferred upon the husband.
4) you ought to take the plea that if your wife is willing to stay with you then you are willing to provide separate residence for her .
5) as far as 498A case is concerned what are the allegations made in complaint . if dowry articles are lying with you then you have to return the same to your wife . apply for AB
Devajyoti Barman
(Expert) 20 February 2013
Making second marriage without divorce of first marriage is valid in Muslim personal Law. So if you are a Muslim you have done no wrong nor it alone amounts to cruelty.
So if there is only allegation of second marriage then the FIR should be quashed.
However the DV case would continue.
R.K Nanda
(Expert) 20 February 2013
no more to add.
ZAHEER HAMID KHAN
(Querist) 21 February 2013
Sir,
I am thankful to you for responding to my queries
Allegations made in DV
The first allegation made by my first wife is that since she knows that I am married again that too with a non muslim girl she attempts to take an advantage of it she puts it as I used to have an extra marital affair when she got married with me which is not the real story she deserted me because she had problems with my sister’s visits at my home and hence she demanded for separate accommodation this is also mentioned by me in my RCR petition for which till today after 1 year 4 months of RCR case she has not replied neither she had filed her W/S on it in fact she responded that she was not having any problem with me and my family and demanded for 15000 as personnel maintenance from me if I want her to come back. She puts an allegations that she used be beaten up by me when she used to inquire with me about the extra marital affair which never existed.
The second allegation which she makes is the cover story which was created by her to lodge an FIR under Sec 498A which is nothing but according to her on 7Oct 2011 I along with my parents, sister & brother N law used to beat her & torture her to bring money for opening a medical shop because she is a pharmacist by profession and finally she was thrown out of the matrimonial house on the very next day when her parents came to meet her.
Allegations made in Sec 498A is
She describes the above mentioned incidence where money was demanded by my parents and other family members to open medical shop as she is a pharmacist by profession.
She describes about the household appliances which she brought to my home when she got married with me and presently the house hold appliances is in the police custody
She also states that she brought 4 tola gold when she got married with me and the entire gold is in my house when she was thrown out of the house to bring money.
She also states that she used to have doubt on me that I am having an extra marital affair with the girl to whom I married with now.
Sir basically we all at home feel disspointed when people react when they hear about my second marriage they say it does not require the first wife to prove that you had an affair with your second wife and they tell that i have done the biggest mistake by getting married for the second time before clearing the first pending case. Please help i and my second wife are really worried as we feel disheartened when people talk about such things we loose hope as we do not know what is the LAW we feel as we have done a big crime. Please help and throw some more light regarding the second marriage in Muslim law.
