The Kerala High Court has ruled that for a remarriage between a divorced Muslim couple to be valid, the wife must provide strict proof of the dissolution of her intervening marriage with another man, in accordance with the doctrine of Halala. The Court held that without such proof, the remarriage is void ab initio due to the “insurmountable obstacle” of a subsisting marriage, and consequently, the wife cannot claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC).
Justice Kauser Edappagath, while setting aside an order of the Family Court, Malappuram, emphasized that the long cohabitation of parties cannot raise a presumption of valid marriage if the woman is disqualified from marrying due to an undissolved previous marriage.
Summary of the Case
The revision petition challenged an order dated July 4, 2024, passed by the Family Court, Malappuram, in MC No. 270/2022. The Family Court had directed the petitioner-husband to pay monthly maintenance of ₹6,000 to the respondent-wife. The primary legal issue before the High Court was whether a divorced Muslim woman could claim maintenance based on an alleged remarriage to her first husband without conclusively proving the dissolution of her intermediate marriage to a second husband. The High Court set aside the maintenance order and remanded the matter to the Family Court for fresh disposal to allow the respondent to adduce further evidence.
Background
The parties are Muslims governed by Muslim Personal Law. They were originally married on May 9, 1983, and a daughter was born in wedlock. The petitioner divorced the respondent by pronouncing talaq on September 20, 1986. Following the divorce:
- The petitioner married another woman on September 21, 1986. After her death in 2020, he contracted a third marriage.
- The respondent married another man on April 4, 1991.
The respondent filed a maintenance case (MC No. 270/2022) alleging that her marriage with her second husband lasted only one year and that she subsequently remarried the petitioner on April 27, 2012, in accordance with Muslim customary rites.
Arguments
The petitioner resisted the claim, contending that there was no second marriage between him and the respondent. He specifically denied the respondent’s claim that her marriage with her second husband had been dissolved. The petitioner argued that since the dissolution of the intervening marriage was not proved, any alleged remarriage with him was invalid.
The respondent argued that she had divorced her second husband within one year of marriage. Her counsel submitted that proceedings under Section 125 CrPC are summary in nature and strict proof of marriage is not required. Reliance was placed on the Supreme Court judgments in Chanmuniya v. Virendra Kumar Singh Kushwaha and Another (2011) and Kamala and Others v. M.R. Mohan Kumar (2019) to argue that long cohabitation raises a presumption of marriage entitling the woman to maintenance.
Court’s Analysis
The Court observed that under Muslim law, a divorced woman cannot freely remarry the same man who divorced her by talaq unless she undergoes Nikah Halala.
“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. … Therefore, 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.”
Proof of Dissolution of Intervening Marriage The Court noted that the respondent did not disclose the intervening marriage in her maintenance petition, though she admitted it in her affidavit. The petitioner disputed the dissolution of this marriage. The Court found that the respondent failed to prove the date or year of the alleged divorce from her second husband.
- The respondent admitted she did not know if talaq was communicated to the mosque.
- Her witnesses (brother and daughter) were minors at the time of the alleged divorce and provided no substantive evidence regarding the dissolution.
“Thus, in the absence of proof of the dissolution of the marriage of the respondent with [her second husband], her remarriage with the petitioner would be void even if it stands proved. It would be hit by the doctrine of halala as well.”
Presumption of Marriage from Cohabitation Addressing the respondent’s reliance on the presumption of marriage due to long cohabitation, the Court clarified that such presumption is rebuttable and does not apply where there is a legal bar to the marriage. Citing the Supreme Court in Vimala (K) v. Veeraswamy (K), Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, and Savitaben Somabhai Bhatiya v. State of Gujarat, the Court held:
“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.”
The Court concluded that since the respondent failed to prove the dissolution of her marriage with her second husband, she remained disqualified from marrying the petitioner. Consequently, the presumption of marriage could not be invoked to claim maintenance.
Proof of Remarriage The Court also found the evidence of the alleged remarriage in 2012 insufficient. While the respondent claimed the Nikah was performed in the presence of a Khatib and witnesses, neither the Khatib nor the witnesses were examined, and the marriage register was not summoned.
Decision
The High Court held that the evidence adduced was insufficient to prove the dissolution of the respondent’s second marriage and her remarriage to the petitioner. However, considering the summary nature of Section 125 CrPC proceedings and the impact of the finding on the respondent’s status, the Court decided to grant her an opportunity to adduce further evidence.
“I am of the view that an opportunity has to be given to the respondent to adduce further evidence, if any, to prove the dissolution of her second marriage as well as the remarriage.”
The impugned order dated 04.07.2024 was set aside. The case was remanded to the Family Court, Malappuram, for fresh disposal within three months after allowing both sides to adduce further evidence.
