‘2nd marriage no basis to stop maintenance to 1st
Mumbai: The Bombay High Court has ruled that the second marriage of a Muslim man cannot be the reason for either stopping payment of maintenance to the first wife or reducing it.
"In fact as per the enjoinment in Islamic Law, a person would be entitled to marry for the second time if he was capable of maintaining both the wives equally fairly," observed Justice Roshan Dalvi while hearing a plea of a woman who sought a raise in maintenance payable by her husband.
"If the husband is in a position to earn, the fact that the husband has remarried and has a second wife, cannot bring down the quantum of maintenance for the first wife whom the husband has failed and neglected to maintain", the judge ruled in a recent order.
The Court was hearing an appeal filed by a woman against a family court order asking her husband, a software engineer, to pay Rs 7900 monthly maintainance to her as their marriage had not been dissolved by the pronouncement of Talaq (divorce). The husband had failed to give proof of the divorce he claimed had happened.
"It is for the husband to determine whether he is in a fit and proper financial position to have and maintain two wives....If he has two wives he is bound and liable to maintain both", Justice Dalvi said.
The family court had arrived at the figure of Rs 7900 on the basis of one-fourth salary drawn by the husband. However, the High Court felt that the lower court had wrongly computed the amount of maintenance, saying that one-fourth was not a fair proportion of the amount to be taken into account.
"Both the husband and the wife are equal in law. They have equal rights and equal obligations. They enter into a marriage contract on the ground of total nondiscrimination", observed the court while more than doubling the maintenance to Rs 18,000 per month.
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