Muslim Wife Residing Separately From Husband On His Contracting Second Marriage Can Claim Maintenance Under CrPC /BNSS: Kerala High Court

Justice Kauser Edappagath stated that even though Muslim law permits husband to contract second marriage during subsistence of first marriage, the husband is bound to treat both the wives equally.

“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 CrPC/BNSS [See Badruddin v Aisha Begum (1957) All. LJ. 300]. 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.”

In the facts of the case, the first petitioner is the wife and the second and third petitioners are the children of the first respondent-husband. The Family Court granted monthly maintenance of rupees 4,000 to the wife and rupees 1,500 each for the children.

The petitioners have approached the High Court for enhancement of the maintenance amount.

The petitioner-wife submitted that the husband is working in Gulf with an income of one lakh rupees per month.

The respondent-husband submitted that he was earlier working in Gulf but now he has returned to India and is working in a bakery for an income of rupees 8,000 only. He has also submitted that he has various ailments and has to maintain his second wife also.

The Court noted that the petitioner-wife has no job or source of income. It also noted that the respondent-husband has failed to produce any evidence regarding his present job or income or to show that he has physical ailments.

The Court further stated that it is presumed that an able-bodied man is capable of earning money for his family and that onus is upon him to prove otherwise.

Court stated, “An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children and cannot contend that he is not in a position to earn sufficiently to maintain his family. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family and discharge his legal obligations for reasons beyond his control.”

Relying upon Rajnesh v Neha & Another (2021), Court stated that adverse inference would be drawn against husband if is unable to produce evidence to prove his present job and income.

In the facts of the case, as per the evidence given by the wife that the husband earns around rupees 1,25,000 per month, the Court stated enhanced the maintenance amount. It thus granted monthly maintenance of rupees 8,000 to the petitioner-wife and rupees 3,000 each to the children.

Counsel for Revision Petitioners: Advocates Jamsheed Hafiz, K.K.Nesna

Case Number: RPFC NO. 334 OF 2022

Case Title: Haseena v Suhaib

Citation: 2025 LiveLaw (Ker) 53