Muslim Man Can Marry More Than Once Without Divorcing Earlier Wife But Same Doesn't Apply To A Muslim Woman: P&H High Court

The Bench of Justice Alka Sarin noted that the Petitioner No.1, the Muslim lady (who admittedly was married earlier) did not obtain a legally valid divorce from her first husband before marrying Petitioner No. 2, Muslim Man.

In other words, in the instant matter, petitioner No.1 (Muslim Woman) and 2 (Muslim Man) got married without petitioner No.1 (Muslim Woman) obtaining a legally valid divorce from her first husband.

The Couple submitted before the Court that they have been in love with each other since many years and on 19^th January 2021, they performed nikah, as per Nikahnama, however, the woman's relatives are against the relationship.

On a query put to counsel for the petitioners as to the marital status of the petitioners, it was stated that being Muslim, the petitioners can both contract a second marriage.

[NOTE: A Muslim lady has to divorce her first husband, either under the Muslim Personal Law or under the provisions of the Muslim Marriages Act, 1939, before contracting a second marriage.]

Further, noting that there was no averment as to whether she divorced her first husband either under the Muslim Personal Law or under the provisions of the Muslim Marriages Act, 1939, the Court said,

"There is also no averment that her first marriage stands dissolved and thus her first marriage subsists in the eyes of law."

In this backdrop, the Court observed,

"In fact, the alleged marriage itself between petitioner No.1 and petitioner No.2 would be illegal inasmuch as this marriage has been contracted without the petitioner No.1 being legally divorced."

Lastly, while holding that the petition is not maintainable at the behest of the petitioners who have got married without petitioner No.1 being legally and validly divorced, the Court said,

"The petitioners have approached this Court for protection of their life and liberty to live as a couple which cannot be considered in the facts and circumstances of the present case."

However, the petitioners, as individuals, were given the liberty to approach the concerned Senior Superintendent of Police for redressal of their apprehensions regarding threats to their life and liberty.

Case title – Nahida & Anr. V. State of Haryana & Ors. [CRWP No.764 of 2021 (O&M)]

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