While remanding a maintenance case to the Family Court for fresh disposal, the Kerala High Court has held that in the absence of proof of the dissolution of the marriage of the muslim woman with the second husband, her remarriage with the first husband would be void even if it stands proved. The High Court also held that a divorced woman cannot freely remarry the same man who divorced her by talaq.

The High Court was considering a revision petition challenging the order passed by the Family Court.

The Single Bench of Justice Kauser Edappagath held, “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. If a woman whose marriage to a living man subsists under the Muslim Law marries a man, her second marriage will be batil (void) under Muslim law. Thus, in the absence of proof of the dissolution of the marriage of the respondent with..., her remarriage with the petitioner would be void even if it stands proved. It would be hit by the doctrine of halala as well.”

The Bench further made it clear that a divorced woman can remarry after the expiration of the legal iddat period if it is legally required. “However, a divorced woman cannot freely remarry the same man who divorced her by talaq. Remarriage between a divorced man and woman under Muslim law is only permissible if the woman marries another man and then divorces him—this is known as the doctrine of Halala or Nikah Halala. Nikah Halala is an accepted Islamic practice, where a woman who has been irrevocably divorced by her husband through talaq mode must marry another man and then divorce him before she can remarry her first husband", it added.

Senior Advocate K.Ramakumar represented the Petitioner, while Advocate P.samsudin represented the Respondent.

Factual Background

The parties are Muslims governed by the Muslim Personal Law. The petitioner married the respondent in 1983 in accordance with Muslim customary rites. In the said wedlock, a girl child was born. The marriage lasted only for three years. The petitioner divorced the respondent by pronouncing talaq. On the next day itself, the petitioner contracted a second marriage and 4 children were born in the said wedlock. In 1991, the respondent married another man. According to the respondent, the marriage lasted only for one year. However, the dissolution of the marriage between the respondent and the man was disputed by the petitioner. The second wife of the petitioner, expired and after her death, he contracted a third marriage with another woman.

The respondent filed a maintenance case against the petitioner, claiming maintenance invoking Section 125 of Cr.P.C. before the Family Court, alleging that she remarried the petitioner in 2012 in accordance with the Muslim customary rites. The petitioner resisted the maintenance case, mainly contending that there was no second marriage between him and the respondent as alleged. However, the Family Court, after appreciation of evidence, repelled the said contention of the petitioner and granted maintenance to the respondent at the rate of Rs 6,000 per month from the date of the petition.

Reasoning

The Bench, at the outset, explained that the marriage under Muslim law is a religious rite and a solemn pact between a man and a woman, soliciting each other’s life-companionship, but it is in the form of a civil contract. It was further noted that the essentials of a Muslim marriage include free consent, competency and the proposal (ijab) and acceptance (qubul) occurring in the same meeting. “The husband must also pay or agree to pay a dower (mahr) to the wife. Though the Muslim law does not require a ceremonial solemnisation of marriage, in India, a Muslim marriage takes place ceremonially in the form of a Nikah, which in law means a direct or indirect exchange of proposal and acceptance between the parties in the presence of witnesses, followed by recital of verses and extracts from the Quran and Hadith relating to the importance of marriage and providing guidance for a happy married life”, it added.

The Bench also stated that to prevent the misuse of this rule to unlawfully circumvent the legal ban on remarriage to a divorced wife through talaq, the law insists that the second marriage must have been consummated and not entered into with the prior intention of dissolving it to remarry the first husband. Coming to the facts of the case, the Bench noted that unless and until the respondent proved the dissolution of her marriage with her second husband, her alleged second marriage with the petitioner could not have any legal validity.

The Bench noted that the evidence adduced by the respondent was insufficient to prove the dissolution of her second marriage and remarriage with the petitioner (first husband). “It appears that, since the proceedings under Section 125 of Cr.P.C. being summary in nature, unlike other matrimonial proceedings, the respondent did not adduce sufficient evidence to prove her case. However, considering the entire facts and circumstances of the case, and also considering the fact that the finding in the MC proceedings shall have a bearing on the status of the respondent as the wife of the petitioner, I am of the view that an opportunity has to be given to the respondent to adduce further evidence, if any, to prove the dissolution of her second marriage as well as the remarriage”, it added.

Setting aside the impugned order and remanding it to the Family Court, Malappuram, the Bench ordered the Family Court to dispose of the case in accordance with law after giving opportunity to both sides to adduce further evidence.

Cause Title: AB v. CD (Neutral Citation: 2025:KER:94062)

Appearance

Petitioner: Senior Advocate K.Ramakumar, Advocate C. Dinesh

Respondent: Advocates P.samsudin, Jasneed Jamal, Lira A.B., Devika E.D., Abin Rashid

Click here to read/download Order








Kerala HCJustice Kauser Edappagath

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.