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HC says 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 CrPC
The Kerala High Court has said a Muslim woman who initiated divorce by 'Khula' at her own volition and refused to live with the husband, cannot claim maintenance under Section 125 of the Criminal Procedure Code.
A single judge bench of Justice A Badharuddin partly allowed a revision petition filed by the husband against the family court's order as the wife effected 'Khula' with effect from May 27, 2021.
In Islamic jurisprudence, `Khula’ is generally recognised as a valid form of divorce if the wife has a legitimate reason for seeking divorce. No doubt, in order to effect `Khula’ the procedure for the same shall be followed, the bench said.
However, the point involved in this matter is whether a wife, who affirms that the marriage was dissolved by 'Khula' can claim maintenance, the bench noted.
Referring to various authorities, including the SC's judgement in Shah Bano case (1985) and subsequent legislative development, the bench said the law is clear on the point that a Muslim divorced wife can claim maintenance under Section 125 of CrPC till she remarries, unless a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period or thereafter in terms of Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Citing Section 125 CrPC which provided maintenance to even divorced wife, the bench said, "When the wife refuses to live with her husband, she could not claim maintenance from the husband."
The court further said, 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 CrPC.
"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 said.
The bench noted the counsel for the wife took note of this legal restraint and fairly submitted that the maintenance claim should be limited till May 27, 2021 by modifying the family court's order.
In its order, the court rejected the man's allegations that the wife lived in adultery finding no evidence to substantiate the charge.
The court modified the family court's order and directed the man to pay at the rate of Rs 7,000 per month to the wife and Rs 10,000 to the child from the date of filing of maintenance plea on July 24, 2019 till the divorce on May 27, 2021.
Case Title: Noushad Flourish Vs Akhila Noushad
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