'Muslim man cannot have second or third wife if no capacity to maintain,' says Kerala High Court

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The Kerala High Court has remarked that successive marriages by a man who survives by begging cannot be justified under Muslim customary law. Justice PV Kunhikrishnan, while considering a petition filed by a 39-year-old woman from Perinthalmanna, said: "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 woman had sought Rs 10,000 per month as maintenance from her 46-year-old husband from Kumbadi, Palakkad, who, according to her, survives by begging. The Family Court had earlier dismissed her plea on the grounds that "a beggar cannot be directed to pay maintenance."

The High Court, while dealing with the peculiar circumstances of the case, pointed out that judges are not mechanical. "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," the court observed.

At the same time, it noted that such marriages within the community are often due to "lack of education, lack of knowledge of the customary law of Muslims." The court added, "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."

In its order, the bench made reference to the Quran, observing that the holy text "propagates monogamy and treats polygamy as only an exception." It added, "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 went on to highlight that "a majority of Muslims follow monogamy, which reflects the true spirit of the Quran, while only a small minority practise polygamy, forgetting its verses." According to the judge, religious leaders and society have a duty to educate people on this matter.

Interestingly, the court also drew from literature, recalling Sree Narayana Guru’s Daivadasakam, a collection of ten verses on God, while reflecting on the plight of the respondent. "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," the order said.

As per the wife’s allegations, her blind husband not only lived with his first wife but also threatened to marry again. "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 judge also expressed doubt about another claim in the petition, saying it was difficult to accept the contention that "her blind husband regularly assaulted her."

During the proceedings, the court found that the man received around Rs 25,000 a month from "various sources, including begging," though it stressed that "begging cannot be recognised as a livelihood." The judge added, "It is the duty of the state, society, and judiciary to ensure that no one resorts to it."

Ultimately, the High Court upheld the Family Court’s decision that no order for maintenance could be issued. "I am of the considered opinion that this court cannot direct a beggar to pay maintenance to his wife," Justice Kunhikrishnan said. However, he made it clear that "the government should ensure that the petitioners' wives are also provided with food and clothing."

The order directed that a copy be sent to the Secretary of the Social Welfare Department for further steps. "The department should provide counselling to the respondent, assisted by the competent counsellors, including religious leaders," it said.

In a satirical note, the court also referred to a Malayalam phrase, essentially meaning: "Don’t put your hand into a begging bowl."

With inputs from PTI