Polygamy out of bounds for Muslim men lacking means: Kerala High Court

Kochi: The Kerala High Court has observed that it cannot accept multiple marriages of a Muslim man when he has no capacity to maintain his wives, and one of them approaches the court claiming maintenance.

The observation was made by Justice P V Kunhikrishnan when a 39-year-old Perinthalmanna native approached the court seeking a monthly maintenance of Rs 10,000 from her husband, who survives by begging.

Earlier, the petitioner had approached a Family Court, which dismissed her plea, stating that her 46-year-old husband from Kumbadi, Palakkad, who was surviving on begging, cannot be directed to pay maintenance.

The court, in a satirical manner, referred to a Malayalam phrase implying: "Don’t put your hand into a begging bowl".

The judge noted that the husband was also not a saint. "Even though he is blind and a beggar, as stated by the petitioner, who is his second wife, he has been threatening her that he will soon enter into a third marriage with another woman," the court observed.

The court perused the petition and found that the respondent was receiving an income of Rs 25,000 from various sources, including begging, and that the petitioner had sought Rs 10,000 per month as maintenance. The respondent currently lives with his first wife.

The court also noted that it could not digest the contention of the wife that her blind husband regularly assaulted her.

However, while highlighting the peculiar facts and circumstances of the case, the court said that judges are not robots. "Admittedly, the respondent belongs to the Muslim community, and he is taking the benefits of his customary law, which, according to him, allows him to marry twice or thrice. A person who has no capacity to maintain a second or third wife cannot marry again, even as per the customary law of Muslims," the court observed.

The court further said that successive marriages of the man, when he was only a beggar, cannot be accepted even under Muslim customary law. "These types of marriages happen in the Muslim community because of the lack of education, lack of knowledge of the customary law of Muslims. A court of law cannot simply recognise the first, second or third marriage of a Muslim man when he has no capacity to maintain his wives and one of the wives approached the court with a petition claiming maintenance," it noted.

Referring to verses of the Quran, it said the holy text propagates monogamy and treats polygamy as only an exception. "If a Muslim man can give justice to his first wife, second wife, third wife and fourth wife, then only marriage more than once is permissible," the court said.

According to the court, a majority of Muslims follow monogamy, which reflects the true spirit of the Quran, while only a small minority practise polygamy, forgetting its verses. They must be educated by religious leaders and society, it said.

Taking up the respondent’s situation, the court said begging cannot be recognised as a livelihood and that it is the duty of the state, society, and judiciary to ensure that no one resorts to it. It stressed that the state must provide food and clothing to such persons.

The court also referred to Sree Narayana Guru’s Daivadasakam, a collection of ten verses on God.

"If a blind man who is begging in front of the mosque and marrying one after another without even knowledge of the fundamental principles of Muslim customary law, he should be counselled appropriately. It is the duty of the state to protect the destitute wives who are victims of polygamy in the Muslim community," the judge said.

The court directed that a copy of its order be given to the Secretary of the Social Welfare Department for appropriate action. "The department should provide counselling to the respondent, assisted by the competent counsellors, including religious leaders," it ordered.

Regarding the plea for maintenance, the court reiterated the Family Court’s earlier stance. "I am of the considered opinion that this court cannot direct a beggar to pay maintenance to his wife. However, the government should ensure that the petitioners' wives are also provided with food and clothing," he court ordered.