Right To Maintenance Under Muslim Women Protection Act Not Defeated By Wife's Remarriage During Trial: Kerala High Court

Dr. Justice Kauser Edappagath delivered the judgment while dismissing a revision petition and an original petition filed by the former husband, challenging orders directing him to pay maintenance and fair provision to his divorced wife and their minor daughter.

The petitioner divorced the respondent by pronouncing talaq in 2011 and the respondent remarried in 2014. After the divorce in 2011, the respondent-wife filed a petition under Section 3(1) of the Muslim Women Protection Act, 1986 against the petitioner, claiming maintenance during the iddat period, reasonable and fair provision for future maintenance and for the return of gold ornaments. During the pendency of the said petition, a petition for maintenance was also filed under the Section 125 of CrPC in the year 2013 before the Family Court.

The family Court disposed of the petition granting monthly maintenance to respondent-wife and minor child from date of petition and added that the respondent-wife is entitled to receive maintenance only up to the date of remarriage in 2014. Thereafter, the magistrate also disposed of the petition towards maintenance during the iddat period by directing payment of an amount for the maintenance during iddat and return of the 7 ½ sovereign of Mahar or money of equivalent value which was Rs. 1,57,500/-.

The Court noted that under Muslim Personal law 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. Relying on Musthafa v Safiya (2025 KLT OnLine 2126), the Court noted that the quantum of reasonable and fair provision for maintenance fixed must be enough to take care of future needs of the divorced women in the prevailing socio economic scenario.

The Court emphasised that a Muslim husband's obligation to provide reasonable and fair provision for his divorced wife arises immediately upon the pronouncement of talaq, not at the time of adjudication. In this case, talaq was pronounced on 13 April 2011, whereas the wife remarried more than three years later, on 7 August 2014.

The Court rejected the husband's argument that the Magistrate's order under Section 3(1) became invalid because it was issued after the wife's remarriage. It held:

“The fact that the petition filed by the wife under Section 3(1) of the Muslim Women Protection Act, 1986 was prolonged even after her remarriage cannot be a ground to deny the benefit she accrued as on the date of divorce.”

Since the husband failed to make any fair provision or maintenance during the iddat period at the time of divorce, the wife was entitled to seek relief under the 1986 Act, regardless of when the Court eventually passed its order.

The husband further argued that a divorced Muslim woman who has invoked Section 3(1) of the 1986 Act cannot maintain a parallel claim under Section 125 of the Criminal Procedure Code. Citing established precedents like Shabana Bano v. Imran Khan (AIR 2010 SC 305), Kunhimohammed v. Ayishakutty (Kunhimohammed v Ayishakutty (2010 (2) KLT 71), and Mohd. Abdul Samad v. State of Telangana (2024 KLT OnLine 1813 (SC)), the High Court rejected this contention, reaffirming that the 1986 Act is not in derogation of Section 125 CrPC but in addition to it.

“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 of the Muslim Women Protection Act, 1986 will stand superseded or extinguished by the enactment of the Muslim Women Protection Act, 1986. S.127(3)(b) of Cr.P.C. 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 applicable to the parties is paid either before or after the order.” the bench noted

The Court thus upheld the Family Court's award of maintenance to wife and minor child. It also confirmed the Additional Sessions Court's modified award of iddat maintenance and reasonable and fair provisions.

Finding no merit in the husband's objections, the High Court dismissed both petitions, thereby affirming the orders of the Family Court, Magistrate Court.

Case Title: Kannada Anwar Salih v Safeekhath and Anr. and connected matter

Case No: RPFC 155/ 2015 and connected matter

Citation: 2025 LiveLaw (Ker) 781

Counsel for Revision Petitioner: K K Mohamed Ravuf

Counsel for Respondents: T K Ajith Kumar, Ramya Varma N K, Aiswarya Ramesan, Varnibha T, E C Bineesh (Sr. PP)