Read Time: 06 minutes

Synopsis

The Kerala High Court (HC) has reiterated that a Muslim wife residing separately from her husband due to his contracting a second marriage retains her entitlement to claim maintenance under the Criminal Procedure Code (CrPC) or the Bharatiya Nagarik Suraksha Sanhita (BNSS).

A Single judge bench of Justice Kauser Edappagath, emphasised that the husband, despite marrying a second time, remains duty-bound to maintain his first wife and children. The court cited the judgment in Badruddin v Aisha Begum (1957) to highlight that, “The Muslim Personal Law, though, permits the husband to contract a second marriage during the subsistence of the first\ marriage in exceptional circumstances, specifically mandates that the husband is bound to treat both wives equally and equitably.”

The court made the observation while hearing the plea filed by the petitioner-wife, who along with her two minor children, had approached the HC seeking an increase in the maintenance awarded by the Family Court. The Family Court had earlier granted ₹4,000 per month to the wife and ₹1,500 each for the two children, deeming it sufficient. However, the petitioner argued that her estranged husband, was employed in the Gulf, earning over ₹1,25,000 per month, and also had additional income from landed property.

The husband, on the other hand, claimed that he had returned from the Gulf, was working in a bakery in Chennai with an income of ₹8,000 per month, and was obligated to maintain his second wife. The husband also contended that the petitioner-wife had voluntarily separated without a valid reason.

Rejecting the husband’s contentions, the court found that no evidence was submitted to substantiate his current employment, income ruling that adverse inference has to be drawn against him. Relying on the precedent set forth in Rajnesh v Neha & Another (2021), the court noted: “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. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.”

The court further remarked, “The fact that the husband has a second wife and is liable to maintain her cannot be a factor in denying maintenance to the first wife or reducing the quantum of maintenance she is entitled to.”

The court concluded that the “monthly maintenance granted by the Family Court is too low.” As a result, based on the wife's evidence that the husband earned approximately ₹1.25 lakh per month, the court enhanced the monthly maintenance to ₹8,000 for the wife and ₹3,000 for each of the two children.

 

Cause Title: Haseena v Suhaib [RPFC NO. 334 OF 2022]

Appearances: For the Petitioner- Advocates Jamsheed Hafiz, K.K. Nesna