Itwari v. Asghari & Ors (AIR 1960 All 684)

Case Title: Itwari v. Asghari & Ors — AIR 1960 All 684

This case explains when a court may refuse restitution of conjugal rights. The husband married again while the first wife lived apart. The wife claimed cruelty and desertion. The Allahabad High Court held that the husband’s suit was mala fide and that it would be inequitable to force the first wife to live with him. A husband who takes a second wife must justify that the act caused no insult or cruelty to the first wife.

1. Can the husband’s second marriage amount to cruelty to the first wife?
2. Should a decree for restitution of conjugal rights be refused when compelling cohabitation would be unjust or inequitable?

Restitution of Conjugal Rights: If a spouse withdraws from the society of the other without lawful cause, the court may order restitution. But the remedy is discretionary. The court can refuse relief if, on the evidence, compelling cohabitation would be unjust or inequitable.

• The Allahabad High Court dismissed the husband’s appeal.
• The suit for restitution was mala fide—filed to counter the wife’s maintenance claim, not to restore the marriage.
• The wife’s account of cruelty and desertion was accepted on the evidence.
• Even without full proof of cruelty, the Court may refuse restitution if it would be unjust or inequitable to force cohabitation.
• A husband who takes a second wife must explain and show that it caused no insult or cruelty to the first wife.
• The Court respects the validity of the second marriage, but will not compel the first wife to share consortium against her will in inequitable circumstances.

Equity limits restitution. Restitution of conjugal rights is not automatic. Where a husband has taken a second wife, the onus lies on him to prove that the act did not amount to cruelty or insult to the first wife. If forcing cohabitation would be inequitable, the decree must be refused.

• Protects the dignity and consent of the first wife.
• Clarifies that personal law permissions do not override equitable relief standards.
• Important for exam answers on restitution of conjugal rights, cruelty, and second marriage.

1. Restitution is a discretionary remedy guided by equity.
2. Second marriage shifts the burden to the husband to show no cruelty or insult.
3. Court may refuse relief even without strict proof of cruelty if relief would be unjust.
4. Filing suit to defeat maintenance claims can be treated as mala fide.

Mnemonic: I-T-W-A-R-I → “Inequity, Two wives, Wife’s dignity, Act mala fide, Restitution refused, Impact on burden.

3-Step Hook:

1. Second marriage? Husband must justify.
2. Equity check: Will forcing cohabitation be unfair?
3. If unfair: Restitution refused.

Restitution of Conjugal Rights

Court order directing a spouse to resume cohabitation and marital duties.

Cruelty

Conduct causing physical or mental harm; includes insult and indignity in context.

Mala fide

In bad faith; improper motive behind a legal action.

Consortium

Companionship and intimate partnership expected in marriage.

• Cases on restitution and cruelty (equitable refusal)
• Judgments on second marriage and first wife’s dignity