First wife should be heard before registering Muslim man's second marriage: Kerala High Court

Kochi: The Kerala High Court here has ruled that if a Muslim man wants to register his second marriage under the Kerala Registration of Marriages (Common) Rules 2008, while his earlier one is still in existence, his first wife should also be heard on whether she is agreeable to it or not.

While making the ruling, Justice P V Kunhikrishnan also said that in such situation religion is secondary and constitutional rights are supreme. Therefore, "customary law is not applicable when the question of registering a second marriage arises", the judge said.

Justice Kunhikrishnan also said, "I don’t think that the Holy Quran or the Muslim Law permits an extramarital relationship with another lady when his first wife is alive and his first marriage with her is in existence, and that also, without the knowledge of his first wife."

The court's observations came while declining to entertain a plea moved by a man and his second wife seeking directions to the state government to register their marriage. The court declined to entertain the plea as the man's first wife was not a party in the proceedings.

It said that a second marriage was permissible under the Muslim Law, "but only in specific situations". It further said that a Muslim first wife cannot be a silent spectator to the registration of her husband's second marriage.

"The first petitioner (man) can marry again if his personal law permits him to do so. However, if the first petitioner wishes to register his second marriage with the second petitioner (second wife), the law of the land will prevail, and in such a situation, an opportunity of hearing for the first wife is necessary.

"In such situations, religion is secondary and constitutional rights are supreme. This court cannot ignore the feelings, if any, of the first wife when her husband registers his second marriage in accordance with the law of the land," the court said.

The judge further said that he was sure that 99.99 per cent of the Muslim women would be against their husband's second marriage when their relationship with him is in existence. In the instant case, the man had fallen in love with another woman and married her while his first marriage was in existence. He had claimed in his plea that he married for the second time with the consent of his first wife.

However, when he tried to register his second marriage, the concerned local body declined to do so. The court said that the marriage registration officer can hear the first wife, and if she objects to her husband's second marriage, stating that it is invalid, the parties can be referred to a competent civil court to establish the validity of the second marriage. "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 said and dismissed the plea.