Divorced Muslim Woman Can Seek Maintenance U/S 125 CrPC Even After Receiving Payment Under 1986 Act: Kerala High Court

Relying on Mohd. Abdul Samad v. State of Telangana, the Kerala High Court recently held that a divorced Muslim woman can invoke Section 125 Cr.P.C. or Section 144 BNSS to claim maintenance from former husband even if he had discharged his obligations under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.Dr. Justice Kauser Edappagath observed that when a Muslim divorced woman approaches the Family Court invoking Section 125 Cr.PC./Section 144 BNSS even after receiving benefits under the Muslim Women Protection Act, the Family Court cannot automatically dismiss the application but has to examine whether she is still able to support herself.The case before the Bench was preferred by a Muslim divorced woman and her minor daughter, who are challenging the Family Court's order of dismissing the wife's claim against former husband and granting monthly maintenance of Rs. 750 to the daughter.The marriage between the 1st petitioner and the respondent was solemnised as per Muslim customary rites and less than six months after the marriage, it was dissolved with the respondent pronouncing talaq. 2nd petitioner was born in the wedlock.An agreement was executed between the respondent and the father of the 1st petitioner, who was a minor at the time. As per the agreement, the post-divorce rights were stipulated, with the 1st petitioner receiving Rs. 1 lakh as matah and Rs. 25,000 towards maintenance during iddat period from the respondent. It was also agreed that the 1st petitioner shall not claim any future maintenance from the respondent.Subsequently, the petitioner filed an application invoking Section 125 of the Code of Criminal Procedure claiming maintenance from the respondent at the rate of Rs. 6,000 and Rs. 3,500. The respondent opposed the same stating that she already received benefits as per Section 3 of the Muslim Women Protection Act. The Family Court agreed and passed the impugned order. Challenging the same, they had come before the High Court.The petitioners claimed that the agreement stipulating post-divorce rights was void ab initio since the 1st petitioner was a minor at the time of its execution. It was argued that the clause stating that maintenance shall not be claimed in the future was against public policy and thus, unenforceable.The Court did not interfere with the finding that there was valid talaq. Addressing the contention that the agreement was void, it was opined that it was valid since the 1st petitioner was represented by her father. This, it was observed, was permissible as per Muslim Personal Law.It was further observed that the Act was a codification of the rules of Muslim personal law regarding rights and obligations of divorced persons and that there is nothing under the Act which indicates that the pre-existing right under Section 125 CrPC will get extinguished.Referring to the precedents by the Apex Court and the High Courts, the Bench clarified that the law is settled that, notwithstanding the enactment of the Muslim Women Protection Act, 1986, a divorced Muslim woman can seek maintenance under Section 125 of Cr.P.C. until she remarries or obtains relief under Section 3 of the Muslim Women Protection Act, 1986.The Court next moved to the question whether maintenance application can be preferred after receiving the benefits under the Act.Relying on the recent Supreme Court decision in Mohd. Abdul Samad v. State of Telangana, it was observed:“the right of a Muslim divorced woman to invoke the secular statutory provision of Section 125 of Cr.P.C. (Section 144 of BNSS) is not entirely barred, even if her former husband discharges his obligations under the provisions of the Muslim Women Protection Act, 1986. When a Muslim divorced woman files an application under Section 125 of Cr.P.C.(Section 144 of BNSS), even after receiving the amount entitled to her under Section 3 of the Muslim Women Protection Act, 1986 or under customary or personal law, it is the duty of the Family Court to examine whether she was still able to support herself.”Case No: RPFC No. 92 of 2018Case Title: Shereefa Munvara and Anr. v. Muhammed KabeerCitation: 2026 LiveLaw (Ker) 5Counsel for the petitioners: G. Sreekumar (Chelur), K. Ravi (Pariyarath)Counsel for the respondent: C.M. KammappuClick to Read/Download Order

Divorced Muslim Woman Can Seek Maintenance U/S 125 CrPC Even After Receiving Payment Under 1986 Act: Kerala High Court

K. Salma Jennath

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