First Wife Must Be Heard Before Registering Muslim Man's Second Marriage, Parties Should Be Sent To Court If She Objects: Kerala High Court

Justice P.V. Kunhikrishnan observed that even though the Muslim personal allows a second marriage to a man in certain situations, if the marriage is to be registered, the law of the land would prevail. Then, religion becomes secondary to constitutional rights.

The observations were made while considering a writ petition preferred by a Muslim man and his second wife, being aggrieved by the non-registration of their marriage of by the registering authority under the Rules.

Dismissing the writ petition, the Court observed:

“In this case, the first wife is not even a party to this writ petition. Therefore, this writ petition need not be entertained. However, I make it clear that the petitioners are free to file an appropriate application before the respondents, and the Registrar of Marriages shall give notice to the first wife of the first petitioner if such an application is received. If she objects to the registration, stating that the second marriage is invalid, the parties should be advised to approach a competent court to determine the validity of the second marriage of the first petitioner. 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 1^st petitioner is already in a subsisting marriage with two children and the said marriage was registered before the registering authority. While the said marriage is still existing, he met the second petitioner and solemnized their marriage as per customary law.

The petitioners also have two children born out of their marriage and they sought to register their marriage to ensure that they also have the lawful right of the property of the 1^st petitioner. The 2nd respondent registering authority refused to register the marriage and hence, they approached the High Court for a direction to register the marriage.

The Court noted that there are two legal questions to be considered in the case. One was whether notice is necessary to the first wife for registering second marriage as per 2008 Rules. The second question was what was the remedy available to the husband if the first wife objects to the registration.

It remarked that though personal law permits a Muslim man to marry more than once, second marriage is permissible only in certain situations as detailed in Jubairiya v. Saidalavi N.

Referring to Rule 11 of the 2008 Rules, the Court observed that on receipt of a memorandum as per Rule 9 to register a marriage, verification is necessary from the registrar's side. It further observed that as per Columns 3(f) and (g) in the form/memorandum, previous marital status of the parties registering their marriage is to be mentioned.

Placing reliance on the Hussain v. State of Kerala [2025 (4) KHC 314], the Court remarked that Registrar does not have the power to decide on the validity of a marriage.

Considering the question whether the registration of second marriage can be done behind the back of the first wife, the Court observed as follows:

“the principles derived from the Holy Qur'an and Hadith collectively enjoin principles of justice, fairness, and transparency in all marital dealings. Therefore, I am of the considered opinion that, if a Muslim man wants to register his second marriage in accordance with the Rules 2008, when his first marriage is in existence and the first wife is alive, an opportunity of hearing should be given to the first wife for the registration. 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.”

The Court further remarked that it cannot ignore the feelings of the first wives when their husbands attempt to register their second marriages.

“I am sure that 99.99% of Muslim women will be against their husband's second marriage when their relationship with him is in existence. They may not disclose the same to society. However, their feelings cannot be ignored by a court, at least when their husbands attempt to register the second marriage in accordance with the Rules 2008. Article 14 of the Constitution says that the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India. Article 15 of the Constitution prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. Religious freedom is guaranteed to all citizens. However, first, a man must respect the constitutional mandates when he wants to register a marriage, as per the Rules of 2008. A Muslim man cannot march over his first wife for registering his second marriage in accordance with the Rules 2008, without notice to the first wife, when her marital relationship with him is in existence.”

The Court highlighted that the opportunity of hearing must be given to the first wife to ensure that she is not being neglected or treated cruelly and observed:

“Muslim Personal Law states that a man can have more than one wife, provided that he has the capacity to maintain more than one wife and can give justice to his first wife. If the husband is neglecting the first wife or not maintaining the first wife, or inflicting cruelty on the first wife and thereafter contracting a second marriage, making use of his Personal Law, an opportunity of hearing to the first wife will be beneficial to her at least when the second marriage is registered in accordance with the Rules 2008.”

Next, considering the situation when the first wife objects to the second marriage of her husband, the Court observed that the register ought not register the second marriage.

“If the first wife objects to the registration of the second marriage of her husband, alleging that the second marriage is invalid, 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,” was the Court's observation.

Thus, the Court dismissed the writ petition.

Case No: WP(C) No. 26010 of 2025

Case Title: Muhammad Shareef C. and Anr. v. State of Kerala and Anr.

Citation: 2025 LiveLaw (Ker) 708

Counsel for the petitioners: Aswanth P.T., Manuel P.J.

Counsel for the respondents: V.N. Ramesan Nambisan, Jessy S. Salim

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