Itwari vs Asghari case summary
ABSTRACT
Itwari vs Asghari (1960), a major case decided by the Allahabad High Court in India deals with the topic of conversion and marriage. As in the present case, Itwari (the husband, a Hindu by religion), contracted a marriage with Asghari, a Muslim widow, after converting to Islam primarily to get a second wife although the first one was alive and married to him. The court held that a conversion to Islam in order to marry a second wife while the first marriage under Hindu law was still in existence is not a valid conversion in the eye of the law. The court also emphasized that no person should be allowed to change or profess a religion for the purposes of evading the present Indian Marriage Act.
FACTS
Itwari married his first wife in 1950 and lived with her, After some days, the wife went to live with her parents because things did not go nicely. Instead of making up to her, he married another woman. The first wife filed an application for maintenance. The husband then filed a claim for recovery of conjugal rights against her. It was held that due to his husband’s illicit affair with another woman, she did not want to live with him She accused the husband of cruelty. The Munsif upheld the husband’s action and she was also told to go back to him. The second appeal was filed in the Allahabad High Court.
ISSUES INVOLVED
• If the husband was guilty of cruelty or not?
• Would the lawsuit filed by the husband towards the restoration of conjugal rights be treated as a mere counter-suit to the wife’s petition for maintenance as per section 488 of the Code of Criminal Procedure, 1973?
Contention of Appellant
• The husband argued that marrying another woman does not indicate cruelty. According to Muslim marriage, a man is allowed to marry four wives.
Respondent’s Contentions
• According to the wife, she was beaten brutally by her husband. He also denied her adornments and did not give her.
• The husband did not even try to reach out to her after she left home and married another woman which indicates that he never cared about her.
• She had endured discriminatory treatment at his hands and was influenced by the husband’s behaviour, that he had not forced his second wife to dwell in his house with her.
Judgement
As per the ruling of the Supreme Court, the husband is not permitted to compel the wife to live with him. Any use of force by the husband should be considered as heartless. In accordance with Order 41, Rule 11 of the Code of Civil Procedure dated 1908, the High Court of Allahabad found that the appeal was submitted deceitfully and rejected it. In line with the District Judge's decision that it would be unjust to compel the initial wife to stay with such a partner. The lower court decided that the appellant did not genuinely love his first wife and only filed the lawsuit to avoid paying maintenance to her. Due to the circumstances, his legal claim was deemed invalid and correctly rejected.
Ultimately, the higher court reversed the lower court's ruling, determining that the wife was abandoned and neglected by her husband for an extended period, supporting her claims of cruelty by him.
by Shivanii Singh
2nd year student
South Calcutta Law College, Calcutta university.
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