The law is well settled that even if a wife has the capability to earn or is earning something, it does not disentitle her from claiming maintenance, the Court said.
The Kerala High Court recently ruled that a Muslim husband cannot deny maintenance to his first wife on the grounds of financial responsibilities toward his second wife or by asserting that their son is supporting her financially (Vappinu v Fathima and connected case).
Justice Kauser Edappagath observed that while Muslim personal law allows a man to marry more than once, both Sharia law and Muslim personal law in India permit polygamy only in exceptional circumstances and require that all wives be treated with equal fairness.
“A Muslim husband does not have a vested right to have more than one wife. 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 Judge added.
The Court emphasized that fairness extends beyond emotional treatment and includes financial support as well.
Accordingly, if a man decides to enter into a second marriage while the first is still subsisting, he is obligated to ensure equal care for both wives, and the second marriage cannot be used as a justification to avoid or diminish his responsibility toward the first wife.
“The verse in the Quran (IV: 3) which permits polygamy makes it abundantly clear that if one is apprehensive of dealing justly with all his wives, he must marry only one. 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. The fact that the husband has a second wife and is liable to maintain her cannot be a factor in denying,” the Court stated.
The Court made these remarks while affirming the maintenance granted to a Muslim woman who had been residing separately from her husband following his second marriage.
The conflict arose when the first wife filed a maintenance case in 2016, asserting that she had no employment or source of income and that her husband, who had worked in the Gulf for over four decades, had ample financial means to support her.
The family court awarded her ₹5,000 per month, but the husband challenged the order before the High Court, claiming that he was unemployed, that his first wife was operating a beauty parlour to sustain herself, and that he was obligated to provide for his second wife as well.
He further contended that his first wife had left him and was living separately without any valid reason.
The husband also filed a separate petition in another family court seeking maintenance from his son, but the court dismissed it, and he subsequently challenged this decision before the High Court.
While examining the husband’s petitions, the High Court noted that he had failed to provide any evidence indicating that his wife was earning or had sufficient financial resources to support herself.
The Court further observed that although he was providing for his second wife, his financial obligation to his first wife remained unaffected by his responsibilities toward the second wife.
Referring to Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which governs maintenance for wives, children, and parents, the Court clarified that a wife’s right to maintenance under Section 144(1)(a) is independent of any support she may receive from her children, and the husband is legally bound to provide for her.
The Court addressed the husband’s claim that his first wife had left him without reason and said that his decision to marry a second time without her consent was enough reason for her to live separately. This did not stop her from claiming maintenance under Section 144(4) of BNSS.
The Court therefore ruled that the first wife was entitled to maintenance from her husband and that his petition against his son had no basis.
As a result, the Court upheld the family courts’ decisions and dismissed the husband’s petitions.
