Kerala High Court rules Muslim man's second marriage cannot be registered without notifying first wife

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The Kerala High Court has ruled that a Muslim man’s second marriage cannot be registered under the Kerala Registration of Marriages (Common) Rules, 2008, without notifying and hearing his first wife. Justice PV Kunhikrishnan, deciding in XXXX & anr v State of Kerala & ors, held that while Muslim personal law permits multiple marriages, such rights must align with constitutional guarantees of equality and fairness.

The judge noted that “a man must respect the constitutional mandates when he wants to register a marriage, as per the Rules of 2008. A Muslim man cannot march over his first wife for registering his second marriage… without notice to the first wife, when her marital relationship with him is in existence.”

He clarified that if the first wife objects to the registration, alleging the second marriage to be invalid, the registrar must halt the process and refer the parties to a competent civil court to determine its legality under personal law. “Customary law is not applicable when the question of registering a second marriage arises,” the Court said, emphasizing that the registrar must ensure procedural fairness under Rule 11 of the 2008 Rules.

The case arose from a petition filed by a Muslim man and his second wife challenging the Thrikkaripur Grama Panchayat’s refusal to register their marriage. The petitioner, already married with two children, argued that his personal law entitled him to four wives and therefore, the registrar was bound to register his second marriage. He claimed to have married the second wife in 2017 with the consent of the first and had two children from that marriage.

Rejecting this contention, the Court reiterated that “the spirit and intention of the Qur’an was monogamy and polygamy was only an exception, permissible only when the husband could do complete justice to all wives.” It added that although the Qur’an does not explicitly require consent from the first wife, informing or obtaining her approval “would be consistent with the values of justice, fairness, and transparency” that both the Constitution and Islam uphold.

“Equality in gender is a constitutional right of every citizen. Men are not superior to women. Gender equality is not a women’s issue, but it is a human issue,” Justice Kunhikrishnan stated. The Court observed that ignoring the first wife’s position during registration would undermine natural justice. “This Court cannot ignore the feelings of the first wife when her husband registers his second marriage… 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.”

The ruling added that if the husband had divorced the first wife before the second marriage, “there is no question of giving notice to the first wife.” However, if the first marriage still subsists, “an opportunity of hearing for the first wife is necessary… Religion is secondary and constitutional rights are supreme.”

The Court emphasized that such notice was not a mere formality but a safeguard against possible injustice, particularly where the husband might have “neglected the first wife, not maintained her, or inflicted cruelty on her and thereafter contracted a second marriage, making use of his personal law.”

Ultimately, the petition was dismissed because the first wife had not been made a party. However, the Court permitted the petitioners to reapply for registration, directing the registrar to issue notice to the first wife if they did so. Concluding the judgment, Justice Kunhikrishnan remarked, “Let Muslim women also get an opportunity of hearing when their husbands remarry, at least at the stage of registering the second marriage.”