The Kerala High Court recently held that a Muslim man’s second marriage cannot be registered under the Kerala Registration of Marriages (Common) Rules, 2008, without first notifying and hearing his first wife. [XXXX & anr v State of Kerala & ors]. 

Justice PV Kunhikrishnan observed that while muslim personal law allows a man to have multiple wives, such a right could not override the constitutional principles of equality and fair hearing.

The judge emphasised that registration of marriage is a legal requirement and procedural fairness under the 2008 Rules requires that the first wife, whose marriage subsists, should be issued with a notice before the registration of her husband's second marriage.

"A man must respect the constitutional mandates when he wants to register a marriage, as per the Rules of 2008. A Muslim man cannot march over his first wife for registering his second marriage in accordance with the Rules 2008, without notice to the first wife, when her marital relationship with him is in existence," the Court said.

Pertinently, if the first wife objects to registration of the second marriage alleging it to be invalid, then the registrar must refrain from proceeding and refer the parties to a competent civil court to establish its validity under their personal law.

"If the husband is neglecting the first wife or not maintaining the first wife, or inflicting cruelty on the first wife and thereafter contracting a second marriage, making use of his personal law, an opportunity of hearing to the first wife will be beneficial to her at least when the second marriage is registered in accordance with the Rules 2008," the Court stated further.

Constitutional rights could not be ignored in the name of religious freedom, the Court said.

"Equality in gender is a constitutional right of every citizen. Men are not superior to women. Gender equality is not a women’s issue, but it is a human issue. As I mentioned earlier, the principles derived from the Holy Qur’an and Hadith collectively enjoin principles of justice, fairness, and transparency in all marital dealings. Therefore, I am of the considered opinion that, if a Muslim man wants to register his second marriage in accordance with the Rules 2008, when his first marriage is in existence and the first wife is alive, an opportunity of hearing should be given to the first wife for the registration,", the Court added.

However, if the second marriage occurs after pronouncing talaq to the first wife, there is no question of giving notice to the first wife.

The Court was hearing a writ petition filed by a Muslim man and his second wife challenging the Thrikkaripur Grama Panchayat's refusal to register their marriage.

The man admitted to being married earlier and having two children from that relationship.

He claimed that after taking his first wife's consent, he married a second time in 2017.

He had two children from his second marriage and the couple sought registration of the second marriage before the local panchayat in order to secure their children's future and to secure the wife's and children's claim to husband's property.

However, the registrar refused to register the marriage, prompting them to move the High Court seeking a direction to compel registration.

The man claimed that under the Muslim personal law, a Muslim male is entitled to have four wives at a time. Therefore, the Registrar is bound to register the second marriage.

The Court referred to its earlier judgement to clarify that the spirit and intention of the Quran was monogamy and polygamy was only an exception, permissible only when the husband could do complete justice to all wives.

The Court stated that while the Quran did not explicitly require the consent of the first wife for a second marriage, however, obtaining her consent or at least informing her before registration of another marriage would be consistent with the values of justice, fairness, and transparency, central to both constitutional and religious principles.

Citing Rule 11 of the 2008 Rules which enables the Registrar to verify if either spouse was already married, the Court observed that while the Registrar could not decide the validity of a marriage, procedural fairness under the 2008 rules demanded that the first wife be informed before registering a second marriage to uphold the principles of equality and natural justice.

"A Muslim first wife cannot be a silent spectator to the registration of the second marriage of her husband, even though the Muslim Personal Law allow a second marriage to a man in certain situations. The 1st petitioner can marry again if his Personal Law permits him to do so. However, if the first petitioner wishes to register his second marriage with the second petitioner, the law of the land will prevail, and in such a situation, an opportunity of hearing for the first wife is necessary. In such situations, religion is secondary and constitutional rights are supreme. In other words, this is essentially the fundamental principle of natural justice," the Court added.

Further clarifying that providing such an opportunity to the women was not a mere formality but a necessary safeguard against potential injustice.

"This Court cannot ignore the feelings of the first wife when her husband registers his second marriage in accordance with the law of the land. I am sure that 99.99% of Muslim women will be against their husband’s second marriage when their relationship with him is in existence. They may not disclose the same to society. However, their feelings cannot be ignored by a court, at least when their husbands attempt to register the second marriage," the Court stated.

It also clarified that if the first wife objects to registration of the second marriage alleging it to be invalid, then the registrar must refer the parties to a competent civil court to establish its validity under their personal law.

"Customary law is not applicable when the question of registering a second marriage arises. I am not saying that the second marriage cannot be registered, but an opportunity of hearing should be given to the first wife by the statutory authorities, while a second marriage of a Muslim man is to be registered. Muslim Personal Law states that a man can have more than one wife, provided that he has the capacity to maintain more than one wife and can give justice to his first wife," the Court made it clear.

Ultimately, the Court dismissed the writ petition since the first wife was not made a party to the proceedings but allowed the petitioners to reapply for registration, directing that notice be issued to the first wife if they did so.

"Let Muslim women also get an opportunity of hearing when their husbands remarry, at least at the stage of registering the second marriage," the Court concluded.

The couple was represented by advocates Aswanth PT and Manuel PJ.

Government Pleader Jessy S Salim appeared for the State.

Advocate VN Ramesan Nambisan represented the Panchayat.

[Read Judgment]