Muslim Man Who Has Contracted Second Marriage Can’t Contend That He Has No Means To Maintain First Wife: Kerala High Court

The Revision Petition before the High Court was filed against the order passed by the Family Court, whereby the maintenance of Rs 5000 per month was granted to the wife. The Family Court had also held that the husband was not entitled to maintenance from the son.

The Single Bench of Justice Kauser Edappagath held, “The verse in the Quran (IV: 3) which permits polygamy makes it abundantly clear that if one is apprehensive of dealing justly with all his wives, he must marry only one. The term ‘to do justly with all wives’ implies not only the equality in love and affection but also the equality in maintenance. Therefore, a Muslim husband who contracted a second marriage during the subsistence of his first marriage cannot contend that he has no means to maintain his first wife. The fact that the husband has a second wife and is liable to maintain her cannot be a factor in denying maintenance to the first wife or reducing the quantum of maintenance she is entitled to.”

Advocate K.Jagadeesh represented the Petitioner while Advocate Sunil Nair Palakkat represented the Respondent.

Factual Background

The marriage between the petitioner and the respondent took place in the year 1983. Three children were born in wedlock. Admittedly, the husband and the wife have been living separately since 2015. The son resides with the wife. The husband contracted a second marriage and has been living with her.

Arguments

It was the husband’s case that he is jobless and has no means to provide maintenance to the wife but on the other hand, the wife is running a beauty parlour and earning her livelihood out of it. It was submitted that she is not entitled to maintenance under Section 125(4) of Cr.P.C.

The Counsel for the wife and son, on the other hand, supported the findings in the impugned orders.

Reasoning

Noting that the husband was maintaining his second wife, the Bench stated, “A Muslim husband does not have a vested right to have more than one wife. Monogamy is the rule and polygamy is an exception under Muslim law. Polygamy for men is allowed under Muslim law only in exceptional and extraordinary circumstances, that too, under the strict injunction that all the wives must be treated equally and equitably. The capacity to do justice between co-wives is a condition precedent for polygamy, both under pristine Shariah law and under the Muslim Personal Law of India. The very foundation of tolerated polygamy in Muslim law is that the husband must be able to deal justly with all the wives.”

As per the Bench, the fact that the son or daughter of a woman has sufficient means and provides maintenance to her would not absolve the husband of his independent statutory obligation under Section 144(1) (a) of BNSS (Section 125(1)(a) of Cr.P.C.) to support his wife if she needs it.

Noting that the second marriage of a Muslim husband without the consent of his first wife is a sufficient reason for the latter to live separately from the former, the Bench referred to the judgment in Haseena v. Suhaib, 2025 and reaffirmed that a Muslim wife who resides separately from her husband on his contracting a second marriage is not disentitled from claiming her statutory right of maintenance under Cr.P.C./BNSS.

Thus, upholding the order of the Family Court, the Bench dismissed the Revision Petition.

Cause Title: PQ v. XY (Neutral Citation:2025:KER:86453)

Appearance

Petitioner: Advocates K.Jagadeesh, V. Renju

Respondent: Advocates Sunil Nair Palakkat, K.N.Abhilash

Click here to read/download Order