S.125 CrPC | Valid Re-Marriage With Ex-Husband Presumed Only If Dissolution Of Muslim Woman's Intervening Marriage Proved: Kerala High Court

The Kerala High Court recently clarified that a presumption under Section 125 CrPC of a valid re-marriage between a Muslim man and his ex-wife can arise only if her subsequent marriage, its consummation and dissolution are proved even though they have been co-habiting for long.Dr. Justice Kauser Edappagath was considering a revision preferred by a Muslim man challenging the Family Court's award of maintenance to his first wife, who claimed that he remarried her subsequent to the dissolution of her second marriage with another man.In the present case, the petitioner and the respondent were married for three years before it was dissolved. Subsequently, he married another woman, who passed away and he contracted another marriage with a third woman. According to the respondent, she entered into a second marriage with another man and after the dissolution of the marriage, she re-married the petitioner. She, thus, claimed maintenance from the petitioner.The Family Court allowed maintenance at the rate of Rs. 6000 per month, which was challenged by the petitioner before the High Court. He submitted that the respondent did not prove the dissolution of her second marriage nor her re-marriage with the petitioner.The Court observed that Muslim law permits re-marriage with a former husband only if certain ingredients are satisfied. It observed:“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…for a remarriage of a divorced Muslim woman with her ex-husband to be valid, the intervening marriage, its consummation, and legal dissolution are necessary.”Looking at the evidence adduced before the Family Court, the High Court noticed that the intervening marriage with the second husband and its dissolution were not disclosed in the respondent's petition for maintenance. However, it was mentioned in passing in her chief affidavit that she had married another after divorcing the petitioner. Though the second marriage was not disputed, its dissolution was and also the re-marriage between the parties.Noting that the dissolution of her second marriage was not proven, and relying on precedents, the Court remarked:“It is equally settled that when a man and woman have cohabited continuously for a long number of years and when a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is proved, that they are living together in consequence of a valid marriage and not in the state of concubinage. However, such a presumption is rebuttable. It is equally settled that the presumption of lawful marriage would arise where there was prolonged and continued cohabitation as husband and wife and where there was no insurmountable obstacle to marriage, such as a prohibited relationship between the parties, the woman being an undivorced wife of a husband who was alive and the like…Hence, 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.”However, the Court felt that the respondent deserved a chance to adduce evidence to prove the dissolution of her second marriage as well as her re-marriage with the petitioner. Thus, it remanded the case to the Family Court and directed the Family Court to dispose of the plea within a period of three months after giving opportunity to both parties to adduce further evidence.Case No: RPFC No. 343 of 2024Case Title: V.P. Abdurahiman v. C. SafiyaCitation: 2025 LiveLaw (Ker) 825Counsel for the petitioner: C. Dinesh, K. Ramakumar (Sr.)Counsel for the respondent: P. Samsudin, Jasneed Jamal, Lira A.B., Devika E.D., Abin RashidClick to Read/Download Order

S.125 CrPC | Valid Re-Marriage With Ex-Husband Presumed Only If Dissolution Of Muslim Woman's Intervening Marriage Proved: Kerala High Court

K. Salma Jennath

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