S.125 CrPC | Valid Re-Marriage With Ex-Husband Presumed Only On Proof Of Muslim Woman’s Intervening Marriage, Its Consummation And Dissolution; Kerala High Court
Isabella Mariam
The High Court of Kerala Single Bench of Justice Dr. Kauser Edappagath set aside a Family Court order awarding maintenance to a Muslim woman and remanded the maintenance case for fresh disposal, directing the Family Court to allow both sides to adduce further evidence and to decide the matter within three months. The revision was filed by a Muslim man challenging the grant of maintenance to his first wife, who asserted that he had remarried her after the dissolution of her subsequent marriage with another man. The Court recently clarified that, for Section 125 CrPC, any presumption of a valid re-marriage based on long cohabitation can arise only if the intervening marriage, its consummation and its lawful dissolution are proved.
The dispute arose from a petition filed by a woman seeking monthly maintenance under Section 125 of the Code of Criminal Procedure, claiming that she had lawfully remarried her former husband in accordance with Muslim customary rites. The parties had earlier been married, and the marriage ended in divorce by talaq. Subsequently, both parties entered into other marriages. The woman asserted that her intervening marriage with another man was dissolved within a year and that she thereafter remarried her first husband.
The man opposed the claim, disputing both the dissolution of the woman’s intervening marriage and the alleged remarriage between them. He contended that, in the absence of proof of a valid dissolution of the intervening marriage, any subsequent marriage would be void under Muslim personal law, disentitling her from maintenance. The Family Court accepted the woman’s version and granted monthly maintenance. This order was challenged before the High Court, leading to the present revision.
The Court recorded that “both admit their first marriage and its dissolution by the pronouncement of talaq. However, their alleged remarriage on 27/4/2012 is in dispute.” It observed that the controversy centred on the “legal validity and proof of remarriage between the petitioner and the respondent.”
Explaining Muslim personal law, the Court stated that marriage is “a religious rite and a solemn pact… but it is in the form of a civil contract,” requiring proposal, acceptance, and witnesses. It further noted that remarriage between divorced spouses is permissible only after an intervening marriage, its consummation, and lawful dissolution, observing that “unless and until the respondent proves the dissolution of her marriage with her second husband, her alleged second marriage with the petitioner cannot have any legal validity.”
On evidence, the Court observed that the woman had not pleaded details of her intervening marriage or its dissolution in the maintenance petition. It recorded that “apart from the vague statement… there is no proof to prove the same,” and that witnesses examined did not depose to the fact of dissolution. The Court further stated that “in the absence of proof of the dissolution… her remarriage… would be void even if it stands proved.”
Regarding cohabitation, the Court acknowledged the presumption of marriage arising from long cohabitation but clarified that such presumption applies only where there is no legal impediment, recording that “in the absence of the dissolution of the respondent’s second marriage… she remains disqualified from marrying the petitioner.”
The Court directed that “the impugned order is set aside, and MC No.270/2022 is remanded to the Family Court, Malappuram, for fresh disposal.” The Family Court “shall dispose of the case in accordance with law after giving opportunity to both sides to adduce further evidence.” The Court fixed a time frame, directing that the matter be disposed of “within a period of three months from the date of receipt of a copy of this order.”
Advocates Representing the Parties
For the Petitioners: Sri. C. Dinesh, Sri. K. Ramakumar (Senior Advocate)
For the Respondents: Sri. P. Samsudin, Shri. Jasneed Jamal, Smt. Lira A.B., Smt. Devika E.D., Shri. Abin Rashid
Case Title: V.P. Abdurahiman v. C. Safiya
Neutral Citation: 2025: KER:94062
Case Number: RP(FC) No.343 of 2024
Bench: Justice Kauser Edappagath
