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Muslim wife initiating divorce not entitled to maintenance from husband: Kerala HC

Thiruvananthapuram: The Kerala High Court has ruled that a Muslim woman who effected her divorce under ‘Khula’ cannot claim maintenance from her husband after it has become effective.

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In the Muslim community, ‘Khula’ is a divorce with the consent and at the instance of the wife, in which she gives or agrees to give consideration to the husband for her release from the marriage.

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 four 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.

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“When the wife effects divorce by ‘Khula’ to get a release from her husband, the same, in fact, is akin to refusal of the wife to live with her husband. If so, the wife, who effected divorce by ‘Khula’ at her own volition and thereby refuses to live with her husband voluntarily, is not entitled to get maintenance from the date of ‘Khula’,” remarked the court.

The High Court ruled this after a man challenged an order of the family court that directed him to pay an allowance of ₹10,000 each month to his ex-wife and son.

The High Court on perusal of the case and its records, noted that the parties were living 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. But the High Court however said maintenance must be paid to the wife and son till the marriage was dissolved under ‘Khula’ and the court closed the case.

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