Having initiated divorce, Muslim woman cannot claim maintenance: Kerala High Court [Read Order]

NEW DELHI: The Kerala High Court has held that a Muslim woman cannot claim maintenance under Section 125 of the Criminal Procedure Code after having initiated divorce by 'Khula' at her own volition.

Justice Badharuddin said when the wife effects divorce by Khula for getting her released from the husband, the same, in fact, is akin to refusal of the wife to live with her husband, as provided under Section 125(4) of CrPC.

"If so, the wife, who effected divorce by Khula at her volition and thereby refuses to live with her husband voluntarily, is not entitled to get maintenance from the date of Khula in view of the restriction provided under Section 125(4) of CrPC," the court said.

The court partly allowed a revision petition filed by the husband against the family court's order.

In the case, the wife had effected 'Khula' with effect from May 27, 2021.

The bench cited the Islamic jurisprudence, wherein `Khula’ is generally recognised as a valid form of divorce if the wife has a legitimate reason for seeking divorce. No doubt, in order to effect `Khula’ the procedure for the same shall be followed, the bench said.

The question before the court was whether a wife, who affirms that the marriage was dissolved by 'Khula' can claim maintenance.

Relying upon previous judgements including the SC's in Shah Bano case (1985) and subsequent legislative development, the bench said the law is clear on the point that a Muslim divorced wife can claim maintenance under Section 125 of CrPC till she remarries, unless a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period or thereafter in terms of Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Citing Section 125 CrPC which provided maintenance to even divorced wife, the bench said, "When the wife refuses to live with her husband, she could not claim maintenance from the husband."

In the case at hand, the bench noted the counsel for the wife admitted this legal restraint and fairly submitted that the maintenance claim should be limited till May 27, 2021 by modifying the family court's order.

In this way, the court modified the family court's order and directed the man to pay at the rate of Rs 7,000 per month to the wife and Rs 10,000 to the child from the date of filing of maintenance plea on July 24, 2019 till the divorce on May 27, 2021.

[Read Order]