KERALA HIGH COURT ON POLYGAMY AND MAINTENANCE

 Kerala High Court on Polygamy and Maintenance: Harmonising Muslim Personal Law with Constitutional Morality

Introduction :

On 20 September 2025, the Kerala High Court, through Justice P.V. Kunhikrishnan, delivered a noteworthy ruling concerning polygamy under Muslim personal law and the right of wives to maintenance. The case involved a 39-year-old woman from Perinthalmanna, the second wife of a blind beggar who not only failed to support her but also threatened to enter into a third marriage.

This judgment goes beyond the petitioner’s plea for maintenance—it raises larger questions about the validity of successive marriages by impoverished men under Muslim law, the constitutional obligation of gender justice, and the responsibility of the State to protect destitute women.

Facts of the Case :

The petitioner sought ₹10,000 per month as maintenance from her 46-year-old husband, claiming he earned about ₹25,000 through alms and other sources.

The Family Court had dismissed her petition, holding that a beggar cannot be directed to pay maintenance.

On appeal, the High Court considered whether polygamy can be permitted when the husband lacks economic capacity, and whether maintenance could be enforced.

Observations of the Court :

Limits of Polygamy under Muslim Law :

Justice Kunhikrishnan, citing Quranic verses, observed that Islam treats monogamy as the norm and polygamy only as an exception.

A man may marry more than once only if he can do justice to all wives and maintain them equally.

A person without means cannot enter into successive marriages “even as per Muslim customary law.”

Economic Responsibility and Marriage :

Successive marriages by a man surviving on begging cannot be recognised.

Ignorance and lack of education were highlighted as reasons for misuse of polygamy, stressing the need for religious and social reform.

Maintenance and Beggary :

The Court held that it cannot compel a beggar to pay maintenance, echoing the Family Court’s stance.

However, it directed the Social Welfare Department to provide food, clothing, and counselling to the petitioner and other affected wives.

State’s Role and Welfare Obligations

The Court reiterated that begging is not a livelihood recognised in law.

It invoked the Directive Principles of State Policy (Articles 39 and 41 of the Constitution) to underline the State’s responsibility to rehabilitate the poor and destitute.

Cultural and Philosophical References :

The judgment invoked Sree Narayana Guru’s Daivadasakam and a colloquial Malayalam proverb, reflecting the Court’s sensitivity to cultural values while delivering legal reasoning.

Precedential Framework :

Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum (1985)

Recognised Muslim wives’ right to maintenance under Section 125 CrPC irrespective of personal law, ruling that personal law cannot override statutory protection.

The present judgment resonates with Shah Bano by holding that economic responsibility is central to marriage.

Supreme Court in Danial Latifi v. Union of India (2001)

Interpreted the Muslim Women (Protection of Rights on Divorce) Act, 1986, and upheld that divorced Muslim women are entitled to a fair and reasonable provision beyond the iddat period.

Justice Kunhikrishnan’s ruling extends this principle of economic justice by applying it even in subsisting marriages where husbands shirk responsibility.

Supreme Court in Javed v. State of Haryana (2003)

Upheld restrictions on persons with more than two children contesting panchayat elections, observing that polygamy is not an essential religious practice under Islam.

This judgment builds on that reasoning, reiterating that personal law is subject to constitutional scrutiny and socio-economic realities.

Kerala High Court in Khadeeja v. Pathummal (1981 KLT 891)

Held that a Muslim wife can claim maintenance under Section 125 CrPC despite personal law restrictions.

The present case reaffirms that wives cannot be left destitute merely because of their husband’s invocation of customary rights.

Kerala High Court in Kunhimohammed v. Ayishakutty (2010 (2) KLT 840)

Stated that the right to marry under personal law is not absolute and must be exercised with fairness and justice.

Justice Kunhikrishnan’s ruling echoes this reasoning by restricting polygamy in cases of financial incapacity.

Legal Analysis :

Maintenance and BNSS: Under Section 125 CrPC (now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023), maintenance depends on the husband’s “sufficient means.” Here, the Court found that compelling a beggar to pay was impractical, but it balanced this with a welfare directive to the State.

Polygamy and Equality: By linking economic incapacity with the prohibition of further marriages, the Court effectively constitutionalised the principles of equality and justice under Articles 14 and 15.

Judicial Creativity: The Court went beyond the adversarial framework and invoked social welfare obligations, expanding the horizon of judicial relief.

Implications of the Judgment :

On Muslim Personal Law :

Reinforces that polygamy is not an unconditional right; it requires fairness and economic capacity.

May serve as a deterrent against misuse of personal law provisions to exploit women.

On Women’s Rights :

Strengthens the jurisprudence that women cannot be left destitute in the name of religious custom.

Reinforces the Quranic spirit of justice and equality rather than a literal misuse of polygamy provisions.

On State Welfare :

Expands the judicial role in directing State intervention in matters traditionally left to personal law.

Recognises that judicial orders alone cannot alleviate poverty, requiring State-driven welfare measures.

Conclusion :

The Kerala High Court’s ruling is both legally and socially significant. Justice P.V. Kunhikrishnan has underscored that polygamy without financial capacity is neither valid under Muslim personal law nor acceptable under constitutional principles. While respecting religious freedoms, the Court reaffirmed that personal law cannot become a shield for exploitation and injustice.

By refusing to impose an impractical maintenance order but simultaneously directing State intervention, the judgment harmonises personal law, constitutional morality, and social welfare. It strengthens the jurisprudence of women’s rights while reminding the State of its duty to protect the vulnerable.

In effect, the ruling becomes a bridge between Shah Bano, Danial Latifi, and Kerala’s own jurisprudence, reaffirming that justice is not a mechanical enforcement of law but a humane balance of rights, duties, and realities.