Second wife no bar to maintaining first, rules Bombay high court

MUMBAI: A second marriage is no reason to stop maintaining the first wife or to give her low maintenance, the Bombay High Court ruled while recently hearing a petition filed by a Muslim woman.

The court said it is for the husband to determine whether he is financially able to maintain two wives when marrying. More than doubling the plaintiff's maintenance, it pointed out that even Islam entitles a man to remarry if he is capable of maintaining his wives equally and fairly.

In November 2010 however, the family court in Bandra, while hearing the matter, adjudged there was no documentary evidence to prove the talaaq. It directed Anwar to give Sajida a monthly maintenance of Rs 7,900, which was about one-fourth of his Rs 31,937 salary. The calculation was based on Anwar's plea that the other three-quarters of the salary were required to sustain himself, his second wife and a child from the second marriage.

In early 2011, Sajida approached the high court, contending that the maintenance was insufficient.

Her advocate Saeed Akhtar argued that Anwar was "duty-bound to maintain his first wife as she has not been divorced". In her July 24 order, Justice Dalvi agreed. The judge said the family court had made a "fundamental error" in reasoning that Sajida's share should be only one-fourth of Anwar's salary. The HC said a husband and wife are equal in law and have equal rights and obligations.

Stating that the wife's share must be on an equal footing, Justice Dalvi raised Sajida's maintenance to Rs 18,000 a month. "Each is entitled to an equal share in earnings and properties. Hence, if the husband is in a position to earn, the fact that he remarried and has a second wife cannot bring down the quantum of maintenance for the first wife, whom he failed and neglected to maintain. It is for the husband to determine if he is in a proper financial position to have and maintain two wives," read the judge's order.

Justice Dalvi added: "The second marriage is not a reason not to maintain the first wife.... In fact, as per the enjoinment in Islamic law, the respondent would be entitled to marry for the second time if he was capable of maintaining both the wives equally and fairly."

Anwar filed an affidavit in the high court, arguing that his service had been terminated, while Sajida told the court that Anwar earned Rs 60,000 a month. Justice Dalvi ruled that there was no documentary evidence to prove Anwar's claim and added that neither the second marriage nor the termination of service absolved him from his "seminal liability, obligation and responsibility of maintaining his wife". 

Justice Roshan Dalvi was hearing a plea filed by 30-year-old Sajida Khan. Sajida married Anwar Khan, a software engineer with a foreign bank, in February 2007. Following marital discord, Anwar, now 32, left her at her parents' place. He claimed giving her talaaq in May 2008.