Divorced Muslim Wife’s Right To Claim Maintenance U/S 125 CrPC Not Extinguished By Enactment Of Muslim Women (Protection Of Rights On Divorce) Act, 1986: Kerala High Court

The High Court clarified that such a right continues until her remarriage or until she actually receives the amounts payable under the 1986 Act.

The Court was hearing a revision petition challenging an order granting maintenance under Section 125 CrPC, along with a connected petition arising out of proceedings for reasonable and fair provision and maintenance under Section 3(1) of the 1986 Act.

A Single Bench of Dr. Justice Kauser Edappagath, upon hearing the matter, noted that “the divorced Muslim wife’s right to claim maintenance under S.125 Cr.P.C. does not stand extinguished by the enactment of the Muslim Women Protection Act, 1986” and reiterated that an order under Section 125 CrPC continues to remain in force until the amounts payable under Section 3 are actually paid.

The petitioner was represented by Advocate K.K. Mohamed Ravuf, while Advocate T.K. Ajith Kumar appeared for the respondent.

Background

The marriage between the parties was not in dispute, nor was the fact that the petitioner divorced the first respondent by pronouncing talaq. The respondent-wife filed a petition before the Magistrate under Section 3(1) of the 1986 Act seeking maintenance during iddat, a reasonable and fair provision for future maintenance, and return of gold ornaments.

During the pendency of the said petition, she also approached the Family Court under Section 125 CrPC seeking maintenance for herself and her minor child. The Family Court awarded monthly maintenance to both. The Magistrate later passed orders under the 1986 Act, granting maintenance during iddat and a quantified, reasonable and fair provision.

The petitioner challenged the orders passed under both proceedings through a revision petition and original petition before the High Court, raising objections to the maintainability of Section 125 proceedings after divorce and the grant of maintenance beyond the iddat period.

Court’s Observation

The Kerala High Court examined the scheme of the Muslim Women (Protection of Rights on Divorce) Act, 1986, clarifying that it provides for civil rights available to Muslim women upon divorce and does not expressly remove their pre-existing rights under Section 125 CrPC.

Referring to Supreme Court precedent, the Bench applied the principle that the 1986 Act is not in derogation of Section 125, but rather “in addition to the said provision”. It held that a divorced Muslim woman may pursue either or both remedies, and her right under Section 125 ceases only when she remarries, dies, or receives the amount due under Section 3.

Since the respondent-wife had not received the entire amount ordered under the 1986 Act and the grant of maintenance by the Family Court had already been limited up to the date of her remarriage, the Court found no legal infirmity in the orders under challenge.

The Court further held that the petitioner’s liability to provide reasonable and fair provision arises immediately upon divorce and cannot be denied on the ground that the proceedings continued beyond the date of remarriage. The quantified amounts awarded by the subordinate courts were found reasonable, considering the circumstances.

Conclusion

Accordingly, the High Court held that both the orders granting maintenance and reasonable and fair provision were legally sustainable. It dismissed the revision petition and original petition, maintaining the maintenance granted under Section 125 CrPC until the date of remarriage and upholding the quantified entitlement determined under Section 3(1) of the 1986 Act.

Cause Title: KAS v. SR & State of Kerala (Neutral Citation: 2025:KER:78554)

Appearances

Petitioner: Advocate K.K. Mohamed Ravuf

Respondents: Advocate Ajith Kumar, EC Bineesh (Senior PP)

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