Second Muslim marriage requires first wife’s notice, says Kerala HC
In a significant decision, the Kerala High Court recently held that the first wife must be given an opportunity of hearing by the statutory authorities while registering the second marriage of a Muslim man in accordance with the Kerala Registration of Marriages (Common) Rules 2008. Justice P V Kunhikrishnan in the order dated October 30, uploaded recently, observed that even though the Muslim Personal Law allows a second marriage to a man in certain situations, if the marriage is to be registered, the law of the land would prevail. Then, religion becomes secondary to constitutional rights, said the Judge.
The observations were made while considering a writ petition preferred by a Muslim man and his second wife, who were aggrieved by the non-registration of their marriage by the registering authority under the rules. “In this case, the first wife is not even a party to this writ petition. Therefore, this writ petition need not be entertained. However, I make it clear that the petitioners are free to file an appropriate application before the respondents, and the Registrar of Marriages shall give notice to the first wife of the first petitioner if such an application is received. If she objects to the registration, stating that the second marriage is invalid, the parties should be advised to approach a competent court to determine the validity of the second marriage of the first petitioner. Let the Muslim women also get an opportunity of hearing when their husbands remarry, at least at the stage of registering the second marriage,” said the Court, dismissing the petition filed by husband and second wife.
In the first marriage, the couple has two children. The registering authority refused to register the second marriage, and the husband and second wife approached the High Court for a direction to register the marriage. The Court noted that there are two legal questions to be considered in the case. One was whether notice is necessary to the first wife for registering the second marriage as per the 2008 Rules. The second question was what remedy was available to the husband if the first wife objected to the registration. The Kerala HC remarked that though personal law permits a Muslim man to marry more than once, a second marriage is permissible only in certain situations, as detailed in Jubairiya vs. Saidalavi N.
Referring to Rule 11 of the 2008 Rules, the Court observed that on receipt of a memorandum as per Rule 9 to register a marriage, verification is necessary from the registrar’s side. It further observed that, as per Columns 3(f) and (g) in the form/ memorandum, the previous marital status of the parties registering their marriage is to be mentioned. The Court remarked that the Registrar does not have the power to decide on the validity of a marriage.
Considering the question whether the registration of a second marriage can be done behind the back of the first wife, the Court observed as follows: “The principles derived from the Holy Quran and Hadith collectively enjoin principles of justice, fairness, and transparency in all marital dealings. Therefore, I am of the considered opinion that, if a Muslim man wants to register his second marriage in accordance with the rules 2008, when his first marriage is in existence and the first wife is alive, an opportunity of hearing should be given to the first wife for the registration. A Muslim first wife cannot be a silent spectator to the registration of the second marriage of her husband, even though the Muslim Personal Law allows a second marriage to a man in certain situations.”
The Court further remarked that it cannot ignore the feelings of the first wives when their husbands attempt to register their second marriages. “I am sure that 99.99% of Muslim women will be against their husband’s second marriage when their relationship with him is in existence. They may not disclose the same to society. However, their feelings cannot be ignored by a court, at least when their husbands attempt to register the second marriage in accordance with the rules of 2008. Article 14 of the Constitution says that the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India. Article 15 of the Constitution prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. Religious freedom is guaranteed to all citizens.
“However, first, a man must respect the constitutional mandates when he wants to register a marriage, as per the rules of 2008. A Muslim man cannot marry over his first wife for registering his second marriage in accordance with the rules 2008, without notice to the first wife, when her marital relationship with him is in existence,” said the judgment. The Court highlighted that the opportunity of hearing must be given to the first wife to ensure that she is not being neglected or treated cruelly, and observed: “Muslim Personal Law states that a man can have more than one wife, provided that he has the capacity to maintain more than one wife and can give justice to his first wife. If the husband is neglecting the first wife or not maintaining the first wife, or inflicting cruelty on the first wife and thereafter contracting a second marriage, making use of his Personal Law, an opportunity of hearing to the first wife will be beneficial to her at least when the second marriage is registered in accordance with the Rules 2008.”
“If the first wife objects to the registration of the second marriage of her husband, alleging that the second marriage is invalid, the registrar shall not register the second marriage, and the parties should be referred to the competent court to establish the validity of the second marriage as per their religious customary law,” said the Court, reiterating that the second marriage can’t be registered if first wife objects.
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