The Kerala High Court observed that the first wife must be heard by the authorities when a Muslim man’s second marriage is being registered, citing the Kerala Registration of Marriages (Common) Rules, 2008.
Justice P.V. Kunhikrshnan noted that despite the Muslim Personal Law permitting a man to marry a second time in certain situations, if that marriage needs to be registered, then ‘law of the land would prevail’. Making constitutional rights more important than religion.
According to Live Law, the ruling was made during the Court’s hearing of a writ petition filed by a Muslim man and his second wife. They were challenging the registering authority’s refusal to register their marriage under the Rules.
The court stated that the first wife is not even a party to the writ petition, thus making the petition “not to be entertained.”
The judge observed that the petitioners are allowed to file an appropriate application before the respondents. However, in doing so, the Registrar of Marriages is then to give notice to the first wife of the petitioner.
While dismissing the petition, the Court said, “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,” it added.
1st petitioner has two children with first wife
The petitioner has two children with his first wife and had registered their marriage with the registering authority. He met the second petitioner while he was married.
The petitioners also have two children, and wanted to register their union so that they could have the lawful right to the husband’s property
Referring to the 2008 Rules, the Court noted that when a registration memorandum (under Rule 9) is received, the registrar must verify the information. This verification includes a listing of the previous marital status.
The Court considered a situation where a second marriage is registered without the first wife’s knowledge. “The principles derived from the Holy Qur’an and Hadith collectively enjoin principles of justice, fairness, and transparency in all marital dealings,” adding that if the first wife is alive, then, “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.”
“Cannot ignore the feeling of first wives”
The Court further said that “99.9 percent of Muslim women will be against their husband’s second marriage” when they are already in a relationship.
“Their feelings cannot be ignored by a court, at least when their husbands attempt to register the second marriage in accordance with the Rules 2008.”
Citing Articles 14 and 15 of the Constitution, the Court observed that all persons are equal before the law. “Religious freedom is guaranteed to all citizens. However, first, a man must respect the constitutional mandates. A Muslim man cannot march 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.”
The Court stressed that the first wife must be heard to prevent her neglect or cruelty.
“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.” It further added that if the husband is neglecting the first wife, ot “inflicting cruelty,” hearing the first wife will be beneficial for her.
The court also considered the situation where the first wife objects to the second marriage.
If the first wife objects to the registration, claiming the second marriage is invalid, the registrar must refuse registration and refer the parties to a competent court to determine the marriage’s validity under customary law, the Court observed.
