Muslim Man Can't Avoid Maintenance To First Wife Citing Duty To Maintain Second Wife: Kerala High Court

The Kerala High Court has observed that a Muslim husband who has contracted a second marriage during the subsistence of his first marriage cannot contend that he has no means to maintain his first wife. Dr. Justice Kauser Edappagath, was delivering the judgment in the revision petitions filed by the husband challenging a Family Court order which granted maintenance to the first wife and dismissed the petition for maintenance against the son. The counsel for the husband submitted that the husband is jobless and has no means to provide maintenance to the first wife who runs a beauty parlour and earns her livelihood out of it. It was also submitted that the wife left the company of husband without any sufficient reason in 2015 and was not entitled to maintenance under Section 125(4) of Cr.PC. It was further submitted that he can't provide maintenance to the first wife since he has to maintain the second wife.The Court observed that a Muslim husband does not have a vested right to have more than one wife. The Court added that 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 capacity to do justice between co-wives is a condition precedent for polygamy, both under pristine Shariah law and under the Muslim Personal Law of India” The Court noted that the foundation of Polygamy in Muslim Law according to the verse in Quran(IV:3) states that the husband must be able to deal justly with all wives.“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.” Court noted.The Court thus held that 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.The petitioner has also submitted that the son provides maintenance to the wife, hence, the claim for maintenance against the husband is not legally sustainable.The Court has reiterated that the right to claim maintenance from husband conferred by Section 144 of BNSS is independent of the obligation of her son or daughter to maintain her under Section 144(1)(d) of BNSS. “The fact that the son or daughter of a woman has sufficient means and provides maintenance to her would not absolve the husband of his independent statutory obligation under Section 144(1) (a) of BNSS (Section 125(1)(a) of Cr.P.C.) to support his wife if she needs it.” Court added. The Court rejected the contention of the respondent that the wife left his company without any sufficient reason by observing that if the wife's decision to live separately is based on valid grounds. “The second marriage of a Muslim husband without the consent of his first wife is a sufficient reason for the latter to live separately from the former.” the Court observed.By relying on the decision Haseena v Suhaib, (2025 (1) KHC 543),the Court noted that, 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 Cr.P.C./BNSSThe Court thus dismissed the revision petition noting that the wife is entitled to maintenance from the husband and the husband is not entitled to maintenance from the son. Case Title: Vappinu v Fathima and connected caseCase No: RPFC 398/ 2018 and connected caseCitation: 2025 LiveLaw (Ker) 780Counsel for Revision Petitioner: K Jagadessh, V Renju, Nikhil K GopinathCounsel for Respondent: Sunil Nair Palakkat, K N Abhilash, Rishi Varma T R, Rithik S Anand, V SreejithClick Here to Read/ Download Judgment

Muslim Man Can't Avoid Maintenance To First Wife Citing Duty To Maintain Second Wife: Kerala High Court

Anamika MJ

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