The Kerala High Court has ruled that a Muslim man cannot register his second marriage under the Kerala Registration of Marriages (Common) Rules, 2008 while his first marriage remains valid, without first giving his wife an opportunity to be heard.
Justice P. V. Kunhikrishnan, delivering the judgment, observed that religion cannot override constitutional rights, stressing that “in such situations, religion is secondary and constitutional rights are supreme.” The court underscored that personal or customary law cannot prevail over the principles enshrined in the Constitution, particularly in matters related to marriage registration.
Petition to register second marriage dismissed
The court was hearing a plea filed by a man and his second wife seeking directions to the state government to register their marriage. However, the petition was dismissed because the man’s first wife had not been made a party to the proceedings.
Justice Kunhikrishnan emphasised that while Muslim personal law permits polygamy under specific conditions, the act of registering such a marriage must adhere to constitutional and statutory safeguards. “The first petitioner can marry again if his personal law permits him to do so. However, if he wishes to register his second marriage, the law of the land will prevail, and in such a situation, an opportunity of hearing for the first wife is necessary,” the court stated.
Religion cannot justify extramarital conduct
Referring to the sanctity of marriage under both civil and personal law, the judge observed, “I don’t think that the Holy Quran or the Muslim Law permits an extramarital relationship with another lady when his first wife is alive and his first marriage with her is in existence, and that also, without the knowledge of his first wife.”
The court further noted that polygamy under Muslim law cannot be used as a justification for secrecy or unfairness in matrimonial relationships. The judgment reaffirmed that any second marriage performed while the first subsists must meet both personal law requirements and constitutional fairness.
Court’s observations on women’s rights
Justice Kunhikrishnan remarked that most Muslim women would not consent to their husband’s remarriage while the first marriage is valid, adding, “I am sure that 99.99% of the Muslim women would be against their husband’s second marriage when their relationship with him is in existence.”
He held that if a first wife objects to the registration of her husband’s second marriage, the marriage registrar may refer the dispute to a competent civil court to determine its validity. The judgment highlighted the need to protect women’s rights within the bounds of both personal and civil law.
Upholding constitutional supremacy
Concluding the order, the High Court stated that Muslim women must be given a voice when their husbands remarry. “Let the Muslim women also get an opportunity of hearing when their husbands remarry, at least at the stage of registering the second marriage,” Justice Kunhikrishnan said.
The decision reinforces the Kerala High Court’s consistent stance that constitutional rights and gender justice take precedence over personal or religious considerations in matters involving marital registration and women’s equality.