Kochi: The Kerala High Court has ruled that a Muslim man cannot avoid paying maintenance to his first wife by pointing to his financial responsibilities towards a second wife, stressing that polygamy under Muslim personal law is permitted only if all wives are treated equally and justly, Live Law reported on Wednesday.
Justice Kauser Edappagath made the observations while dismissing revision petitions filed by a husband challenging a family court order that had granted maintenance to his first wife. The husband claimed he was unemployed, that his first wife earned her own livelihood by running a beauty parlour, and that she had left the matrimonial home in 2015 without sufficient cause, arguing she was therefore not entitled to maintenance under Section 125(4) of the Code of Criminal Procedure.
He further contended that he was obliged to maintain his second wife and that their adult son was already supporting the first wife, so her claim against him was not legally sustainable. The High Court rejected these arguments, holding that a Muslim husband does not have a vested right to marry more than one wife and that, in Muslim law, monogamy is the norm while polygamy is a narrowly carved-out exception, law, Live Law reported.
The court underlined that polygamy is tolerated only in exceptional circumstances and only on the strict condition that all wives are treated equally, including in terms of maintenance. It noted that the Quranic basis for polygamy requires a husband to be able to “deal justly” with all wives, which encompasses equality in both affection and financial support.
On this reasoning, the court held that a Muslim husband who contracts a second marriage while the first marriage is still subsisting cannot later plead lack of means to maintain the first wife. It added that the presence of a second wife cannot be used either to deny maintenance to the first wife or to seek a reduction in the amount awarded to her.
The judgment also clarified that a wife’s statutory right to maintenance from her husband under the provisions now contained in the Bharatiya Nagarik Suraksha Sanhita is independent of any obligation on her children to maintain her. Support provided by a son or daughter does not absolve the husband of his separate legal duty to his wife.
Finally, the High Court accepted that the first wife’s decision to live separately was justified, observing that a Muslim husband’s second marriage without the consent of the first wife is itself a sufficient reason for her to reside apart while still retaining her right to claim maintenance.