The Kerala High Court recently held that a Muslim man cannot avoid giving maintenance to his first wife by citing obligations towards his second wife or by claiming that their son is helping her financially [Vappinu v Fathima and connected case]

Justice Kauser Edappagath explained that although Muslim personal law permits a man to marry more than once but both under the Sharia Law and the Muslim personal law in India, polygamy is permitted only in exceptional situations and with the strict requirement that all wives are treated fairly.

"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 Judge added.

Fairness is not limited to emotional treatment but also financial support, the Court underscored.

Thus, when a man chooses to remarry while his first marriage is valid, he must ensure that he has the ability to care for both his wives equally and his second marriage cannot be used as an excuse to deny or reduce his liability towards his first wife.

"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," the Court stated.

The Court made the observations while upholding the maintenance awarded to a Muslim woman who had been living separately from her husband after his second marriage

The dispute began after the first wife filed a case for maintenance in 2016 stating that she had no job or income to maintain herself and that her husband, who had worked in the Gulf for more than 40 years, had sufficient means to maintain her.

A family court granted her ₹5,000 per month, which was challenged before the High Court by the husband stating that he was currently unemployed and that his first wife was running a beauty parlour to support herself, while he had to maintain his wife from his second marriage.

He also argued that his first wife had left him and was residing separately without any justification.

The husband filed another petition before another family court seeking maintenance from his son. However, the court dismissed his petition and the same was also challenged before the High Court.

While considering the husbands's petitions, the High Court observed that he had not produced any evidence to show that his wife was earning or had any financial resources to maintain herself.

The Court also noted that he was maintaining his second wife and said that his financial responsibility towards his first wife would continue regardless of his obligations towards the second wife.

Referring to the scope of Section 144 of Bharatiya Nagarik Suraksha Sanhita (BNSS) which deals with order for maintenance of wives, children and parents, the Court clarified that a wife's right to maintenance from her husband under Section 144(1)(a) is independent of any support she receives from her children and the husband is statutorily obligated to support her.

Further, addressing the argument that his first wife had left him without any justification, the Court observed that entering into a second marriage without the consent of the first wife was sufficient reason to stay separately and would not bar the first wife's claim for maintenance under Section 144(4) of BNSS.

Thus, the Court concluded that the first wife was entitled to maintenance from her husband and that the husband had no valid claim against his son.

Hence, it upheld the family courts' orders and dismissed the petitions by the husband.

Advocates K Jagadeesh, V Renju and Nikhil K Gopinath appeared for the husband.

Advocates KN Abhilash, Sunil Nair Palakkat, Rishi Varma TR, Rithik S Anand, V Sreejith represented the wife and her son.

[Read Order]