Kerala High Court: Muslim Wife Can Claim Maintenance If Living Separately Due to Husband’s Second Marriage

The Kerala High Court has reaffirmed that a Muslim wife who chooses to live separately from her husband due to his decision to contract a second marriage is not deprived of her right to claim maintenance. This entitlement is upheld under the provisions of the Criminal Procedure Code or the Bharatiya Nagarik Suraksha Sanhita. The court's stance emphasizes that a husband's remarriage, which often disrupts the harmony and security of the marital relationship, cannot be used as a basis to deny the wife's legal right to financial support. This judgment reinforces the principle of ensuring justice and dignity for women in matrimonial disputes, particularly in cases where their fundamental rights are at stake.

Justice Kauser Edappagath emphasized that while Muslim law permits a husband to marry a second wife during the existence of the first marriage, it is imperative that the husband treats both wives with equality and fairness. This principle of equality is fundamental to ensuring justice within the marital relationship, as it safeguards the rights and dignity of both spouses. The husband is legally and morally obligated to provide equitable treatment, which extends to emotional, financial, and social aspects of the relationship, thereby fostering a just and balanced marital arrangement.

In the present case, the first petitioner is the wife, while the second and third petitioners are her children, all of whom are seeking an increase in the maintenance amount awarded by the Family Court. The Family Court had initially granted a monthly maintenance sum of ₹4,000 to the wife and Rupees 1,500 each to the children. However, the petitioners have now approached the High Court, requesting an enhancement of these amounts. The petitioner-wife argued that her husband, the first respondent, is employed in the Gulf region and earns a monthly income of Rupees 1,00,000. She contended that, given his substantial earnings, the maintenance amounts previously awarded were insufficient to meet the basic needs and upkeep of the family, particularly in light of the husband's financial capacity. The respondent-husband argued that although he had previously been employed in the Gulf, he has since returned to India and is now working in a bakery, earning only Rupees 8,000 per month. He also claimed to be suffering from various health issues and stated that he is responsible for supporting his second wife as well.

However, the Court observed that the petitioner-wife is unemployed and has no independent source of income. The Court further noted that the respondent-husband failed to provide any evidence regarding his current employment, income, or to substantiate his claims of health problems. The Court emphasized that it is presumed an able-bodied man has the capacity to earn a living to support his family, and it is his responsibility to provide proof if he is unable to do so. The burden of proof lies with him to demonstrate any circumstances that would justify a reduced ability to provide financial support.

Court stated, “An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children and cannot contend that he is not in a position to earn sufficiently to maintain his family. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family and discharge his legal obligations for reasons beyond his control.”

Citing the case of Rajnesh v Neha & Another (2021), the Court observed that an adverse inference would be drawn against the husband if he failed to provide evidence regarding his current employment and income.

Based on the wife’s testimony that the husband earns approximately Rupees 1,25,000 per month, the Court decided to enhance the maintenance amount. As a result, the Court granted a monthly maintenance of Rupees 8,000 to the petitioner-wife and Rupees 3,000 each to the children.