Remarriage During Proceedings Does Not Defeat Divorced Muslim Woman’s Accrued Right To Fair Provision And Maintenance Under Section 3(1) Muslim Women (Protection Of Rights On Divorce) Act: Kerala High Court
Safiya Malik
The High Court of Kerala Single Bench of Justice Dr. Kauser Edappagath has held that the prolonged pendency of a petition under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not take away the rights that arose in favour of a divorced Muslim woman on the date of divorce, even if she remarries during the proceedings. Deciding challenges brought by the former husband, the Court dismissed a revision petition and an original petition against orders directing payment of maintenance during the iddat period, reasonable and fair provision for the future, and maintenance for the couple’s minor daughter, thereby leaving undisturbed the directions issued under the 1986 Act and Section 125 of the Code of Criminal Procedure.
The matter concerns two connected proceedings arising from disputes between a divorced Muslim couple regarding maintenance and fair provision. The husband filed a revision petition challenging an order of the Family Court that had granted monthly maintenance to his former wife and their minor child under Section 125 of the CrPC. The wife had earlier filed a petition before the Magistrate Court seeking maintenance during the iddat period, reasonable and fair provision for future maintenance, and return of gold ornaments under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Both petitions proceeded simultaneously.
The Family Court first disposed of the wife's petition by granting her monthly maintenance and granting separate maintenance to the minor child from the date of the petition, limiting the wife's entitlement until her remarriage on 07.08.2014. Later, the Magistrate Court issued an order directing the husband to pay iddat maintenance, a quantified amount towards reasonable and fair provision, and return of gold or its monetary value. The husband challenged this order before the Additional Sessions Court, which partly modified the directions by reducing the iddat maintenance amount, refixing the fair provision, and setting aside the direction regarding Mahar.
The husband then approached the High Court challenging both the Family Court order under Section 125 CrPC and the Magistrate Court as modified by the Additional Sessions Court under Section 3(1) of the 1986 Act. His contentions included that the divorced wife could not maintain a petition under Section 125 CrPC once she had invoked the 1986 Act and that maintenance or fair provision could not be granted for any period beyond her remarriage. The wife supported the impugned decisions.
The High Court examined the statutory provisions invoked, including Section 125 CrPC, Section 3(1) of the 1986 Act, and Section 127(3)(b) CrPC. The Court analysed the nature of obligations under personal law and statutory law, including the husband's liability to provide reasonable and fair provision from the time of divorce.
The Court stated that “under the pristine Shariah Law and under the Muslim Personal Law as administered in India, on divorce, a Muslim husband is legally and morally bound to provide reasonable and fair provision for future maintenance to the divorced wife.” It recorded that such provision must enable the wife “to take care of herself for the rest of her life or until she remarries” and that various factors, including the parties’ status and circumstances, are relevant for fixing the amount.
The Court observed that “the liability of the husband to pay the reasonable and fair provision for future maintenance arises as soon as the divorce is effected.” It noted that the husband did not discharge this obligation at the time of pronouncing talaq, compelling the wife to seek relief before the Magistrate Court.
Addressing the contention regarding Section 125 CrPC, the Court stated that “there is nothing in the Muslim Women Protection Act, 1986 that indicates that the right of the Muslim divorced wife, which they had under S.125 of Cr.P.C. before the enactment… will stand superseded or extinguished.” It further recorded that Section 127(3)(b) CrPC “clearly shows that an order passed under S.125 will continue to remain in force even after divorce until the amount payable under the customary or personal law… is paid either before or after the order.”
The Court relied on precedent and recorded that “the law is settled that a divorced Muslim woman can seek maintenance under S.125 of Cr.P.C. until she remarries or obtains relief under S.3 of the Muslim Women Protection Act, 1986.” It noted that the order under Section 3(1) was passed only on 29.02.2016 and “even today, the said amount has not been paid.” Thus, her right under Section 125 CrPC was not extinguished.
On the argument concerning remarriage, the Court observed that although the wife remarried on 07.08.2014, her right to reasonable and fair provision accrued as on the date of divorce. It stated that “the fact that the petition… was prolonged even after her remarriage cannot be a ground to deny the benefit she accrued as on the date of divorce.”
The Court held: “The quantum of maintenance granted to the respondent No.1 by the Family Court, the quantum of maintenance during iddat period, and the reasonable and fair provision granted by the revisional court appear to be very reasonable. I see no reason to interfere with the impugned orders. The original petition, as well as the revision petition, is accordingly dismissed.”
Advocates Representing The Parties
For the Petitioners: Shri. K.K. Mohamed Ravuf, Advocate
For the Respondents: Shri. T.K. Ajith Kumar, Smt. Remya Varma N.K., Smt. Aiswarya Ramesan, Smt. Varnibha T., Sri. E.C. Bineesh, Sr. Public Prosecutor
Case Title: Kannadan Anwar Salih v. Safeehkath & another; Kannadan Anwar Salih v. Safeehkath & State of Kerala
Neutral Citation: 2025: KER:78554
Case Number: RPFC No.155 of 2015 & OP(Crl.) No.424 of 2025
Bench: Justice Kauser Edappagath
