The Kerala High Court has rendered a verdict stipulating that in the aftermath of a ‘Khula’ divorce, a Muslim wife cannot assert her entitlement to maintenance from her husband under Section 125 of the Code of Criminal Procedure (CrPC).
In the context of ‘Khula’ divorce, a dissolution of marriage occurs at the behest of the wife, usually involving a consideration provided by the wife to her husband in exchange for the termination of the marital contract.
The meticulous examination of Section 125(4) of the CrPC by Justice A. Badharudeen has yielded the pronouncement that a wife is disqualified from obtaining maintenance or interim maintenance in cases involving adultery, an unreasonable refusal to cohabit with her husband, or a mutual agreement to live apart.
“When the wife effects divorce by Khula for getting her released from the husband, the same, in fact, is akin to refusal of the wife to live with her husband, as provided under Section 125(4) of Cr.P.C. If so, the wife, who effected divorce by Khula at her volition and thereby refuses to live with her husband voluntarily, is not entitled to get maintenance from the date of Khula in view of the restriction provided under Section 125(4) of Cr.P.C.,” the Bench observed.
The court’s judgment mandates that the petitioner, who had submitted a revision petition, continues to provide financial maintenance until the ‘Khula’ divorce is formally effectuated.
In this particular case, the respondent wife and her child initially sought relief from the Family Court, seeking financial support at a monthly rate of Rs. 15,000 for the wife and Rs. 12,000 for the child. The wife contended that she cohabited with the petitioner until December 2018 but left due to his alleged cruelty and accusations of an extramarital relationship. She also asserted that she initiated the ‘Khula’ process on May 27, 2021.
In response, the petitioner argued that he had been financially supporting his wife and had faced business losses in 2018. He maintained that the wife left him following these financial setbacks and argued that her involvement with another man led to the dissolution of their marriage. The Family Court, lacking substantial evidence to substantiate allegations of adultery, granted maintenance at the rate of Rs. 10,000 per month for both parties.
The central issue before the court was whether a wife, who seeks the dissolution of her marriage through ‘Khula,’ can subsequently claim financial maintenance. The court referenced authoritative legal sources, elucidating the implications of ‘Khula’ and ‘Mubara’ in the context of divorce, and emphasized that a divorce through ‘Khula’ or ‘Mubara’ does not absolve the husband of his responsibility to provide maintenance for the wife during her iddat (waiting) period or to support their children.
Furthermore, the court cited several pertinent Supreme Court judgments to emphasize that a divorced Muslim wife can assert her entitlement to financial maintenance under Section 125 of the CrPC until she remarries, unless the husband makes a reasonable and equitable provision for her within the iddat period or thereafter, in accordance with the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Nonetheless, the court noted that Section 125(4) of the CrPC specifies that a wife is not eligible for financial maintenance if she is engaged in adultery, unreasonably refuses to cohabit with her husband, or if they are residing separately by mutual consent. The court determined that ‘Khula’ is tantamount to the wife’s refusal to cohabit with her husband, as per the statutory definition.
The court conducted a meticulous examination of the documentary evidence presented by the petitioner to substantiate the claim of the wife’s involvement in an extramarital relationship and pregnancy.
The court established that the ‘Khula’ had been formally pronounced only on May 27, 2021, while the legal dispute between the parties had commenced in 2019. Until this juncture, the parties had cohabited until December 2018.
As a result, the court concluded that the pregnancy fell within the legal presumption of legitimacy, as prescribed by Section 112 of the Evidence Act. Additionally, the court emphasized that the medical document provided by the petitioner did not substantiate the assertion of an adulterous relationship involving the wife.
In light of these considerations, the court determined that the first respondent lacked a stable source of employment or income to support herself and the child. Consequently, the court affirmed the award of financial maintenance to the wife and child, although it reduced the wife’s monthly maintenance to Rs. 7,000 until May 27, 2021, while retaining the child’s maintenance at Rs. 10,000 per month.
