The Kerala High Court recently held that a muslim woman who obtained divore through khula cannot claim maintenance from her husband after the date of effecting khula.
According to Mulla’s Principles of Mahomedan Law, khula is a divorce with the consent and at the instance of the wife in which she gives or agrees to give a consideration to the husband for her release from the marriage tie.
Justice A Badharudeen observed that a Muslim woman can claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC) till she remarries, but clause 4 of this provision says that she will not be entitled to maintenance or interim maintenance if she refuses to live with her husband or if they are living separately by mutual consent.
Noting that khula is akin to a refusal to live with the husband, the Court reasoned that the wife would not be entitled to claim maintenance after she pronounces khula.
“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 CrPC,” the Court held in its judgment.
The judgment was passed on a revision petition moved by a man challenging an order of the family court that directed him to pay allowance of ₹10,000 each to his ex-wife and son.
The husband contended that the marriage failed due to adultery on the part of the wife. Moreover, it was argued that he should not have to pay maintenance from May 27, 2021 at least since the marriage was dissolved by pronouncement of khula on that date.
The High Court went through the material placed on record by the petitioner-husband but found that the claim of adultery cannot be proved. However, it noted that the parties had lived separately from December 31, 2018 and the litigation between them commenced in 2019.
The Court also took into account the fact that the wife had no permanent income or employment to maintain herself and their child.
Therefore, it affirmed the payment of maintenance but altered the quantum and period for which the maintenance must be paid to ₹7,000 for the wife and ₹10,000 for the son for the period till May 27, 2021.
The husband was represented by advocates Shaijan Joseph Joseph, Varghese Mundakkal and Surmi Shakeel.
The wife and son were represented by advocates T Asafali and Laliza TY.
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