Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Kerala High Court: In a revision challenging the Family Court’s maintenance order under Section 125 of the Criminal Procedure Code, 1973 (CrPC), a Single-Judge bench of Dr. Kauser Edappagath, J., set aside the impugned order and held that maintenance under Section 125 CrPC cannot be claimed by a divorce Muslim women based on alleged remarriage or cohabitation unless she proves — lawful dissolution of the intervening marriage, compliance with the doctrine of Nikah Halala, and valid solemnisation of remarriage.
In the instant matter, the parties are Muslims governed by Muslim Personal Law. The petitioner and the respondent were married on 09-05-1983 in accordance with Muslim customary rites. A girl child was born in the wedlock. The marriage, however, lasted only for three years and on 20-09-1986 the petitioner divorced the respondent by pronouncing talaq.
The respondent instituted proceedings under Section 125 CrPC claiming that she had remarried the petitioner on 27-04-2012 in accordance with Muslim customary rites and was entitled to maintenance. The Family Court accepted her case and awarded maintenance at the rate of ₹6,000/- per month from the date of the petition. Aggrieved by the impugned order, the petitioner approached this Court in revision.
The Court analysed the essentials of a Muslim marriage and reiterated that proposal (ijab) and acceptance (qubul) in the same meeting in the presence of competent witnesses are mandatory for valid Muslim marriage. The Court noted that “one of the basic conditions for the validity of a marriage in Muslim law is that the woman must not have a living and legally recognised husband” and that a marriage contracted in violation of this condition would be batil (void).
The Court also examined the doctrine of Nikah Halala, and observed that remarriage between a divorced Muslim woman and her former husband is permissible only if the intervening marriage is real, consummated, and lawfully dissolved.
The Court noted that the respondent had not even pleaded her intervening marriage or its dissolution in the maintenance petition. Apart from a vague statement in her affidavit, there was no reliable evidence regarding the divorce from her second husband. The Court further noted that in cross-examination, the respondent was unable to state either the date or the year of the alleged divorce, nor could she establish that talaq was pronounced or communicated in accordance with law.
With regard to the alleged remarriage in 2012, the Court found that though oral evidence was adduced, no independent witnesses, khatib, or mosque records were examined or produced. The Court held that, in such circumstances, the marriage was not satisfactorily proved.
“Unless and until the respondent proves the dissolution of her marriage with her second husband, her alleged second marriage with the petitioner cannot have any legal validity.”
On the argument of presumption arising from cohabitation, the Court held that such a presumption cannot arise where there exists an insurmountable legal obstacle to marriage, namely the subsistence of a prior marriage. The Court reiterated that a woman disqualified from marrying cannot claim maintenance on the basis of cohabitation alone.
The High Court set aside the Family Court’s order awarding maintenance and remanded the matter for fresh consideration, granting liberty to both parties to adduce additional evidence. The Court directed the Family Court to dispose of the matter within three months.
[V.P. Abdurahiman v. C. Safiya, RP(FC) No. 343 of 2024, Decided on 05-12-2025]
*Judgment by Dr. Justice Kauser Edappagath
Advocates who appeared in this case:
Sri. C. Dinesh and Sri. K. Ramakumar, Counsel for the Petitioner
Sri. P. Samsudin, Shri. Jasneed Jamal, Smt. Lira A.B., Smt. Devika E.D. and Shri. Abin Rashid, Counsel for the Respondent