Kochi- A recent landmark judgment by the Kerala High Court has ruled that a Muslim man cannot register his second marriage under the Kerala Registration of Marriages (Common) Rules, 2008, without providing an opportunity of hearing to his first wife, as long as the first marriage is subsisting. Justice P.V. Kunhikrishnan delivered the verdict on October 30, while dismissing a writ petition filed by a Muslim man and his second wife who sought a directive for the registration of their marriage by the Thrikkaripur Gram Panchayat.

Background of the case

The case stemmed from a petition by a Kasaragod man, the first petitioner, who had already been married with two children when he solemnized a second marriage in 2017 with the second petitioner, a divorced woman with two children from her previous union, following Muslim customs. The couple, who have since had two minor daughters, evidenced by birth certificates, approached the Thrikkaripura Grama Panchayat to register their union for inheritance and child welfare benefits, but the authorities refused without clear reasons, prompting the writ petition.

Justice Kunhikrishnan delved into the nuances of Muslim Personal Law, clarifying that while polygamy is permissible, it is far from a blanket right. Drawing from Quranic verses, the court stressed that monogamy remains the ideal, with multiple marriages allowed only if a man can ensure absolute justice among wives. "There is a misconception that a Muslim man can marry more than one woman in all situations if he wishes to do so," the judge observed, quoting Quran Chapter 4, Verse 3: "And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses." He further cited Verse 129: "And you will never be able to be equal [in feeling] between wives, even if you should strive [to do so]. So do not incline completely [toward one] and leave another hanging."

The ruling highlighted the "spirit and intention of these verses is monogamy, and polygamy is only an exception," adding that "the Holy Quran greatly stresses ‘justice’," and that the majority of Muslims practice monogamy, urging religious leaders to educate against unchecked polygamy.

The court rejected the notion of registering a second marriage "behind the back of the first wife," invoking principles of fairness from the Quran and Hadith. "The principles derived from the Holy Qur’an and Hadith collectively enjoin principles of justice, fairness, and transparency in all marital dealings," Justice Kunhikrishnan stated, stressing that "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 allow a second marriage to a man in certain situations." He emphasized constitutional supremacy over custom in registration matters, noting, "In such situations, religion is secondary and constitutional rights are supreme."

Gender equality under Articles 14 and 15 of the Indian Constitution was pivotal, with the judge asserting, "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." The registrar, while lacking authority to adjudicate marriage validity—as affirmed in prior rulings like Hussain v. State of Kerala—must verify memorandum details under Rule 11, including prior marital status, and now provide hearing opportunities. If the first wife objects, claiming invalidity, "the registrar shall not register the second marriage, and the parties should be referred to the competent court to establish the validity of the second marriage as per their religious customary law."

Dismissing the petition since the first wife was not a party, the court clarified it does not invalidate the solemnization itself but mandates procedural safeguards for registration. "Let the Muslim women also get an opportunity of hearing when their husbands remarry, at least at the stage of registering the second marriage," the judge directed, allowing the petitioners to reapply with notice to the first wife. This ruling, building on precedents like Jubairiya v. Saidalavi N., could reshape marriage registration practices in Kerala, fostering greater equity in personal law applications and sparking broader debates on polygamy's intersection with modern legal frameworks.