Muslim Wife Initiating Divorce Not Entitled To Maintenance From Husband U/S 125 CrPC From Date Of 'Khula': Kerala High Court

The Kerala High Court has held that a Muslim wife who effected her divorce by pronouncement of 'Khula' cannot claim maintenance from her husband under Section 125 CrPC, after effecting Khula. 

Divorce by 'Khula' is a divorce at the instance of, and with the consent of the wife, by which she gives or agrees to give a consideration to the husband for her release from the marriage tie.

Perusing Section 125 (4) of Cr.P.C., Justice A. Badharudeen noted that no wife shall be entitled to receive an allowance for the maintenance or interim maintenance, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent.

"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 Cr.P.C. 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 Cr.P.C.," the Bench observed. 

Court however directed the revision petitioner (husband) to pay maintenance for the period till the Khula was effected. 

As per the factual matrix, the respondent wife and child had first approached the Family Court, claiming maintenance at the rate of Rs. 15,000/- for the wife, and Rs. 12,000/- for the child. The 1st respondent wife averred that she had stayed with the revision petitioner till December 2018, and thereafter left him after he treated her cruelly alleging extra-marital relationship. 

The 1st respondent had also effected `Khula’ with effect from May 27, 2021. 

The revision petitioner on his part, submitted that he had given all his hard earned money to the 1st respondent, and that he had incurred loss in his business sometime in 2018. He asserted that the 1st respondent had lived with him till December 2018, and thereafter left his company following the loss incurred in his business. The revision petitioner also alleged that the respondent wife had gotten into a relationship with another man, which led to the cllapse of the marriage. 

The Family Court, noting that that no convincing evidence had been adduced by the revision petitioner to prove the adultery, other than oral evidence, ordered maintenance at the rate of Rs. 10,000/- to each of the petitioners. 

The Court in this case was faced with the question whether a wife, who affirms that the marriage was dissolved by Khula could claim maintenance after effecting Khula. 

The Court at the outset perused Mulla's Principles of Mahommedan Law, detailing the effect of 'Khula' and 'Mubara' at divorce, and noted that although a divorce effected by khula or mubara`at operates as a release by the wife of her dower, the same does not affect the liability of the husband to maintain her during her iddat, or to maintain his children by her.

The Court also perused Apex Court decisions such as Mohd. Ahmed Khan v. Shah Bano Begum & Ors. (1985), Danial Latifi & Anr. v. Union of India (2001), and Shamima Farooqui v. Shahid Khan (2015) to note that a Muslim divorced wife could claim maintenance under Section 125 of Cr.P.C till she remarries, unless a reasonable and fair provision extending beyond the iddat is 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. 

The Court however, on taking note of Section 125(4) Cr.P.C., added that no wife would be entitled to maintenance if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent, and that 'Khula' is akin to refusal of the wife to live with her husband, as provided under the provision. 

The Court also went through the documents produced by the revision petitioner to prove that the 1st respondent led an adulterous wife and had gotten pregnant from her alleged affair. 

The Court observed that Khula was pronounced only with effect from May 27, 2021, while the litigation between the parties started in 2019. The Court ascertained that till this period, the parties lived together till December 2018. 

It thus found that the pregnancy was covered under the presumption of legitimacy as provided under Section 112 of the Evidence Act. The Court further stated that the medical document relied upon by the revision petitioner would also not suggest adulterous life of the 1st respondent. 

The Court, thus taking note that the first respondent had no permanent employment nor income to maintain herself and the child, thus affirmed payment of maintenance to the respondent wife and child. It however, reduced the quantum of maintenance to the wife to Rs. 7,000/- per month, for the period till May 27, 2021, while maintaining the maintenance to the child as Rs. 10,000/- per month. 

Cousel for the Petitioner: Advocates Shaijan Joseph Joseph, Varghese Mundackal, and Surumi Shakeel

Counsel for the Respondents: Advocates T. Asafali and Laliza T.Y. 

Citation: 2023 LiveLaw (Ker) 550