Muslim law permits polygamy only for men who can maintain their wives equally: Kerala High Court

The Kerala High Court recently observed that Muslim personal law allows polygamy only for men who can fairly and equally maintain all their wives.

Justice PV Kunhikrishnan said that it is a misconception that polygamy is permitted for all Muslim men. Quoting verses from the Quran (Chapter 4, verse 3 and verse 129), the judge stated that those who cannot appropriately provide for even one wife are not permitted to marry again.

"There is a misconception that a Muslim man can marry more than one woman in all situations if he wishes to do so...The spirit and intention of these verses is monogamy, and polygamy is only an exception. The Holy Quran greatly stresses ‘justice’. If a Muslim man can give justice to his first wife, second wife, third wife and fourth wife, then only marriage more than once is permissible," the Court said.

The Court also observed that most members of the Muslim community practice monogamy and that those who continue to practice polygamy, ought to be educated by religious leaders.

"The majority of the people in the muslim community are followers of Monogamy, even if they have the wealth to maintain more than one wife. That is the true spirit of the Holy Quran also. The small minority among the muslim community who are following polygamy, forgetting the verses of the Holy Quran, are to be educated by the religious leaders and society," the Court said.

Polygamy occurs in the Muslim community due to lack of education and lack of knowledge of Muslim customary laws, the Court added.

Pertinently, the Court opined that the State too is obligated to counsel Muslim men, who cannot maintain multiple wives, to refrain from engaging in polygamy. The Court added the State should also protect the women who are victims of polygamy.

"It is also the duty of the State to see that if a blind man who is begging in front of the mosque and who belongs to the Muslim community is marrying one after another without even having knowledge of the fundamental principles of Muslim customary law, he is counselled appropriately. Appropriate counselling should be given to such a person by the authorities of the State. It is the duty of the state to protect the destitute wives who are the victims of polygamy in the Muslim community," the Court stated.

The Court made these observations in an order passed on a petition filed by a Muslim woman seeking maintenance from her husband.

A family court had dismissed her application for maintenance prompting her to move the High Court.

The husband was a blind man who made his living from handouts from his neighbors and by begging in front of a mosque.

The petitioner was his second wife while the husband resided with his first wife.

The petitioner claimed that the husband was threatening to divorce her by pronouncing talaq. She claimed that he has been threatening to marry a third time as well. She also alleged that the husband was abusive towards her.

The family court dismissed her plea for maintenance after noting that a person who begs for a living cannot be forced to pay maintenance to his wife.

While consdering the wife's appeal, the Court agreed with the decision of the family court.

However, it opined that the man must be counselled not to marry any further as he has no resources to maintain even a single wife.

"A court of law cannot simply recognise the first, second or third marriage of a Muslim man when he has no capacity to maintain his wives, and one of the wives approached the court with a petition under Section 125 Cr.P.C. claiming maintenance. Proper counselling is necessary for these types of persons. This Court must also consider the plight of the petitioner, who is the second wife of the respondent, as well as his first wife. The respondent (husband) married the petitioner, likely due to a misunderstanding of Muslim law," the Court explained.

Emphasising that the State has a duty to ensure that its citizens are not forced to beg for a living, the Court directed the State government to counsel the husband and if possible, reunite him with the petitioner. The Court added that the government should also ensure that the man's wives are provided with food and clothing.

The petitioner was represented by advocate EC Ahamed Fazi.

The husband was represented by advocates K Rajesh Kannan, Seetha P and Ajith CR.

[Read Order]