Karnataka High Court
Bashirahmed vs Surayya on 29 July, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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MFA No. 101005 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH R
TH
DATED THIS THE 29 DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101005 OF 2015 (FC)
BETWEEN:
SHRI. BASHIRAHMED S/O. IMAMSAB TAHSILDAR,
AGE: 52 YEARS, OCC: BUSINESS,
R/O: GROUND FLOOR OF THE HOUSE BEARING,
CTS NO.4817/52/HB, 2ND CROSS,
SUBHASH NAGAR, BELGAUM.
... APPELLANT
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND:
1. SMT. SURAYYA D/O. USMANSAB BENNI,
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
R/O: IN A ROOM BUILT ON THE TERRACE OF THE
HOUSE BEARING CTS NO.4817/52/HB,
Digitally signed 2ND CROSS, SUBHASH NAGAR, BELGAUM.
by JAGADISH T
R
2. SHRI. NADEEM S/O. BASHIRAHMED TAHSILDAR,
Location: High
Court of AGE: 27 YEARS, OCC: BUSINESS,
Karnataka
Dharwad Bench R/O: GROUND FLOOR OF THE HOUSE
BEARING CTS NO.4817/52/HB,
2ND CROSS, SUBHASH NAGAR, BELGAUM.
3. MISS AAFIYA D/O. BASHIRAHMED TAHSILDAR
AGE: 25 YEARS, OCC: SERVICE,
R/O: GROUND FLOOR OF THE HOUSE
BEARING CTS NO.4817/52/HB, 2ND CROSS,
SUBHASH NAGAR, BELGAUM.
...RESPONDENTS
(BY SRI. VISHWANATH V. BADIGER, ADV. FOR R1;
NOTICE TO R2 & R3 ARE SERVED)
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MFA No. 101005 of 2015
THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURTS ACT
1984, AGAINST THE JUDGMENT & DECREE DATED 12.11.2014,
PASSED IN O.S.NO.7/2012, ON THE FILE OF JUDGE FAMILY COURT,
BELAGAVI, DECREEING THE SUIT FILED FOR DECLARATION,
PARTITION AND CONSEQUENTIAL RELIEF OF PERMANENT
INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM:HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
ORAL JUDGMENT
(PER: HON'BLE KRISHNA S.DIXIT)
This appeal arises from the judgment and decree dated
12.11.2014 entered by the learned Family Court Judge,
Belagavi in respondent's suit in OS No.7/2012, the operative
portion of which reads as under:
"Suit of the plaintiff is decreed as under.
It is hereby declared that the plaintiff has got
1/4th share in the suit schedule property mentioned in
para-1 of the plaint.
Plaintiff is entitled for 1/4th share in the suit house
property by way of partition as per Sec.24 of CPC.
It is hereby permanently restrained the defendant
from alienating the suit property.
No order as to costs.
Draw preliminary decree accordingly."
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2. Brief facts of the case:
(a) The parties are Sunni Muslims. They got their marital
tie disrupted by virtue of Khulanama dated 6.4.2008 at Ex.P3.
It is the case of plaintiff/wife that in terms of this Khulanama,
the appellant/husband had agreed to give 1/4th share in the
house property bearing CTS No.4817/52/HB fully described in
the suit schedule. Some dispute as to this property having
propped up, the respondent/wife had filed the subject suit
seeking a decree for declaration as to her 1/4th share in the
said property and a decree of partition of this share. In
addition, she had also prayed for the grant of a decree for
restraining alienation of the said property.
(b) The appellant being the defendant entered appearance
through his counsel and filed his Written Statement resisting
the suit claim, inter-alia, contending that the law relating to
Khulanama contemplates consideration being given by the
wife to the husband and not the reverse of it; wife having
taken up money in lieu of 1/4th share in the subject property
has given up her claim over the same, as is evidenced by her
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affidavit dated 6.4.2008. Suit of the kind was not maintainable
in its present form and substance.
(c) On the basis of pleadings of the parties and the
documents accompanying the same, learned Family Court
Judge framed the following six principal issues for
consideration:-
1) Whether the plaintiff proves that she is the
absolute owner of 1/4th share in the suit schedule
property on the basis of Khulanam dated
6.4.2008?
2) Whether the plaintiff is entitled for partition and
separate possession of 1/4th share in the suit
schedule property?
3) Whether this Court has no jurisdiction to entertain
the suit?
4) Whether the suit in the present form before this
Court is not maintainable as contended by the
defendants 1 and 2?
5) Whether the plaintiff is entitled for the relief of
declaration as sought for?
6) Whether the plaintiff is entitled for the relief of
permanent injunction as sought for?
(d) To prove her case, the plaintiff got herself examined as
PW1; her brother one Mr.Babu had deposed as PW2. In their
deposition, six documents came to be marked as Ex.P1 to P6.
They inter-alia comprised of Sale Deed, Property Register,
Khulanama, etc. From the side of the defendants, the
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appellant himself got examined as RW1 and no documents
were produced from his side. The learned Family Court Judge
having adverted to the pleadings of parties and weighed the
evidentiary material placed on record has entered the
impugned judgment & decree that are put in challenge in this
appeal at our hands.
3. Having heard the learned counsel for the parties
and having perused the appeal papers along with the original
TCR, we decline to grant indulgence in the matter for the
following reasons:
(a) The first submission of learned counsel appearing for the
appellant that, in Islamic Law where the marriage is dissolved
by khula, it is the wife, who has to give consideration to the
husband and not the reverse, is difficult to countenance as a
thumb rule and reasons for this are not far to seek: firstly it is
not a case of khula as such but a mixed case of mubara'at &
Khula. Asaf A.A. Fyzee's OUTLINES OF MUHAMMADAN LAW1:
"...In the case of khula the wife begs to be released
and the husband agrees for a certain consideration
which is usually a part or the whole of the maher...;
1 th
5 Edition at page 129 says
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while in mubara'at apparently both are happy at the
prospect of being rid of each other... As a general
rule, in khula the wife makes some compensation to
the husband or gives up a portion of her maher; but
this is not absolutely necessary..."
(b) In Islamic Law there lies a difference between the
process by which khula is brought about and the way
mubara'at is effected: in the former, the proposal to put an
end to the marital relation comes from the side of wife
whereas in the later both the sides bring it up. In Moonshee
Buzulur Raheem Vs. Luteefut-oon-Nissa2, what the Privy
Council observed, lends support to this view: "... A divorce by
Khoola 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 ..." Fyzee
supra at page 129 further writes "... if the desire to separate
emanates from the wife it is called Khula; but if the divorce is
effected by mutual aversion (and consent) it is known as
mubara'at ...". The marital tie between the parties was
disrupted by virtue of "KHULA - MUBARA'AT" DEED dated
06.04.2008, at Ex.P-3. It specifically mentions that the marital
(1861) 8 MIA 379
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relationship between the parties became strained and reached
beyond the stage of patch up. That is how they have entered
into the arrangement, whereby the marriage is dissolved.
Deed also mentions that the appellant has given property
share on the instructions of elders of community. Thus, he has
not given it at the insistence of respondent. Therefore, it is not
a clear case of khula but an anomalous arrangement, not
unkown to Islamic Law
(c) The appellant and the respondent have entered into a
contract to put an end to the marriage and accordingly the
marriage came to be dissolved. As a part of bargain between
the parties, in which others too participated the appellant had
undertaken to give 1/4th share in the subject property to the
respondent. This cannot be said to run counter to the Islamic
Law which mandates that the women should be treated with
love and affection. Prophet Muhammad had said:
"The most excellent of you is he who is best in the
treatment of his wife." (M 13:11). "O my people! You have
certain rights over your wives and your wives over you... They
are the trust of God in your hands. So you must treat them
with kindness." (M 15:19)3
'The position of Women in Islam', by Mohamad Ali Syed, State University of New York Press.
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The mankind is appreciably moving towards gender equality.
India is a party to several International Conventions that
promote gender equality. The UN Convention on the
Elimination of All Forms of Discrimination against Women is
one of them. Conventions of the kind need to animate out
domestic law, be it statutory or customary. They have to be
kept in view while construing and applying the rules of
personal laws like Hindu Law, Islamic Law, etc. Added the
contention of the kind runs counter to the Equality
Jurisprudence that has been gloriously enacted in our
Constitution. The Apex Court in Safai Karmachari Andolan
Vs. UOI4. has observed that International covenants which
have been ratified by India are binding to the extent that they
are not inconsistent with the native law.
(d) A perusal of the Deed of Khulanama & Mubara"at at
Ex.P-3 coupled with the attending circumstances indisputably
lead to one single conclusion that the parties had decided to
go for dissolution of marriage and that they have accordingly
dissolved it. The stipulation as to granting of 1/4th share in the
subject property is in the nature of condition super added.
(2014) 11 SCC 224, para 16
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Even without that, the position would not have been altered in
the sense that there would not have been dissolution of
marriage. Therefore, the idea of consideration which arguably
khula involves, has to stay away. To put it differently, there is
a marked difference between what is consideration and what
is condition. The stipulation in the circumstances is only a
condition and not consideration. It hardly needs to be stated
that ordinarily consideration is the price for the arrangement
whereas condition is not. A transaction is any less valid if it
lacks consideration. Agreements founded on matrimonial
relationships ordinarily fall into this category. Even otherwise,
pacta sunt servanda that is "abide by what is agreed upon" is
a way of life on which the society has been organised. The
appellant had undertaken and accordingly gave 1/4th share in
the property in question which has been rightly the subject
matter of impugned decree. An argument to the contrary
strikes at the root of law, reason & justice. Countenancing that
would be like placing premium on unconscionability.
(e) The next contention of the learned counsel
appearing for the appellant that the respondent in terms of
her affidavit dated 6.4.2008 (Ex.P6) has given away all and
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whatever interest that was sought to be created in the subject
property under Khulanama at Ex.P6 is again difficult to agree
with. The said affidavit at paragraph-2 reads as under:
"Due to the strained relationship between myself and my
husband for the last two years we are unable to continue
our marital relationships. Therefore by Khulanama -
Mubaraata dated: 06th day of April 2008 we have dissolved
our marriage with the terms of stipulated in the Khulanama
- Mubaraata. From this day after the compliance of the
terms of the Khulanama- Mubarrata whereby I have been
given ¼ share in CTS No.4817/52/HB I do not have any
claim over my husband or any property belonging to him. I
further state that I will not file any complaint or any
maintenance case or any other suit against my divorce
husband or against my children."
It is difficult to agree with the construction placed by the
counsel on this paragraph. It is in plain English and being as
clear as Gangetic waters it does not admit any interpretation,.
It only reflects and reiterates what has been stated in the
Khulanama. There is nothing that indicates that the
respondents has given up her claim over the subject property
that is 1/4th share.
(f) The last contention of the learned counsel appearing
for the appellant that suit of the kind was not maintainable
before the Family Court, is again liable to be rejected. Section
7 of the Family Courts Act, 1984 by its terminology vests a
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pervasive jurisdiction in the Family Courts in respect of
matrimonial causes. Section 7 reads as under:
"7. Jurisdiction.--(1) Subject to the other provisions
of this Act, a Family Court shall
(a) have and exercise all the jurisdiction exercisable
by any district court or any subordinate civil court
under any law for the time being in force in respect of
suits and proceedings of the nature referred to in the
Explanation; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or, as
the case may be, such subordinate civil court for the
area to which the jurisdiction of the Family Court
extends.
Explanation to sub- section (1) reads.- "the suits and
proceedings referred to in this sub-section are suits and
proceedings of the following nature, namely:- ...
(c) a suit or proceeding between the parties to a
marriage with respect to the property of the parties or of
either of them"
That being the position, suit of the kind perfectly fits into its
wide phraseology.
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In the above circumstances, this appeal being unworthy
of merit is liable to be and accordingly dismissed with costs
of Rs.10,000/- (rupees ten thousand only)
Sd/-
(KRISHNA S.DIXIT)
JUDGE
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
JTR/ct-an
