Itwari v Smt Asghari
Rule established
Muslim law tolerates but does not encourage polygamy, and confers no absolute right on a husband to compel the first wife to share his consortium in all circumstances. A suit for restitution of conjugal rights is enforcement of a right under a civil contract, and the court sits as a mixed court of equity, so relief may be refused where the plaintiff's conduct is unworthy or the suit mala fide. Under modern social conditions the very act of taking a second wife raises a presumption of cruelty to the first, and the onus shifts to the husband to prove that his second marriage involved no insult or cruelty to her.
Facts
- Itwari married Asghari around 1950. The marriage went wrong, she left to live with her parents, and he took no steps to bring her back and instead married another woman. She applied for maintenance under S.488 of the old Code of Criminal Procedure.
- He then sued for restitution of conjugal rights, impleading her father and two brothers. She alleged that she had been turned out, that he had formed an illicit union with the woman he later married, that he had beaten her and taken her ornaments, and that her dower was unpaid.
- The Munsif decreed the husband's suit. The District Judge, Rampur, reversed, finding that the suit was a counter blast to the maintenance claim, that the husband's long silence showed he had never really cared for her, and believing her allegations of ill treatment.
Issue
- Whether a Muslim husband who has taken a second wife is entitled as of right to a decree for restitution of conjugal rights against the first, and whether the taking of a second wife may amount to cruelty justifying her refusal to live with him.
Held
- The second appeal was dismissed. Muslim law tolerates but has never encouraged polygamy, and gives the husband no fundamental right to compel the first wife to share his consortium in all circumstances. Restitution of conjugal rights is enforcement of the right to consortium under a civil contract, and the court sits as a mixed court of equity, following Abdul Kadir v Salima and Moonshee Buzloor Ruheem v Shumsoonnissa Begum, so it may refuse relief where the plaintiff's conduct is unworthy, the suit mala fide, or where it would be unjust to compel the wife to live with him.
- On cruelty, the test is universal and humanitarian and does not differ by religion. Under modern social conditions the very act of taking a second wife raises a presumption of cruelty to the first, and the onus shifts to the husband to explain and to prove that his second marriage involved no insult or cruelty, for example that it was contracted at the first wife's own suggestion. Absent a cogent explanation the court will presume cruelty and refuse to compel her to live with him. On these facts the suit was mala fide, brought only to defeat the maintenance claim, and the appellate court had believed specific acts of cruelty, so relief was rightly refused.
Ratio Decidendi
Two independent grounds, and both should be identified because the case does not rest on the presumption alone. The equitable ground. A decree for restitution is discretionary because the remedy is equitable. A suit brought as a tactical response to a maintenance claim, by a husband whose long inaction shows he had no genuine desire for his wife's company, is mala fide and will be refused on that basis whatever the position on cruelty. The presumption ground. Cruelty is judged by a universal, humanitarian standard, and not by a standard varying with the religion of the parties, a point Dhavan J drew from the observation in Moonshee Buzloor Ruheem that Mohammedan law on legal cruelty between husband and wife would probably not differ materially from English law. Given contempora
How to use it in an exam
- The leading authority whenever a problem involves a second marriage and either a suit for restitution or a wife's refusal to cohabit.
- State the holding as a rebuttable presumption with the onus on the husband, not as a rule that a second marriage is cruelty. The precision matters, because the husband may rebut it, for instance by showing the marriage was at the first wife's suggestion.
- Identify both grounds. The suit also failed on the independent equitable ground that it was mala fide, so the presumption is not the sole basis of the decision.
- Get the date right: decided 29 August 1959, reported All India Reporter 1960 Allahabad 684.
- Links to the 1939 Act: cruelty is a statutory ground of dissolution under S.2(viii), and S.2(viii)(f) expressly covers a husband with more wives than one who does not treat her equitably in accordance with the injunctions of the Quran. Itwari supplies the evidential approach to such a claim.
- Cite the "mixed court of equity" formulation alongside Abdul Kadir v Salima in questions on restitution of conjugal rights.
Source
Source: AIR 1960 All 684; 1960 All LJ 523. Second Appeal No 66 of 1959, Dhavan J sitting singly. Judgment delivered 29 August 1959, so 1960 is the AIR report year and not the decision date. Bench, date, facts and the presumption formulation verified on audit of 12 August 2026.
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.