Noufal vs Munassa Jabeen
2023 Latest Caselaw 5761 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT

        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                &
            THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
  WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
                    MAT.APPEAL NO. 72 OF 2023
AGAINST THE JUDGMENT DATED 13.01.2023 IN O.P.NO.1268 OF 2022
        ON THE FILE OF THE FAMILY COURT, MALAPPURAM
APPELLANT/RESPONDENT:

            NOUFAL
            AGED 48 YEARS, S/O. KOLAKKATTIL KUNHANU (LATE),
            KOLAKATTIL HOUSE, PARAPPUR AMSOM DESOM,
            PARAPPUR P.O., KOTTAKKAL, MALAPPURAM DISTRICT,
            PIN - 676503.
            BY ADVS.
            C.M.MOHAMMED IQUABAL
            P.ABDUL NISHAD
            RAIHANATH T.H.
            ISTINAF ABDULLAH
            MUHAMMED AMEEN


RESPONDENT/PETITIONER:

            MUNASSA JABEEN,
            AGED 36 YEARS,
            D/O.MUSLIYAR KALATHIL MUHAMMEDKUTTY, MUSLIYAR
            KALATHIL VEEDU, KOTTAKKAL AMSOM,PUTHOOR DESOM,
            PUTHOOR P.O., MALAPPURAM DISTRICT, PIN - 676505.
            BY ADVS.
            JAYESH MOHANKUMAR K
            PUSHPARAJAN KODOTH
            VANDANA MENON
            VIMAL VIJAY


     THIS    MATRIMONIAL   APPEAL   HAVING   COME   UP   FOR   FINAL
HEARING ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                 2
Mat.Appeal No.72 of 2023




                           JUDGMENT

P.G.Ajithkumar, J.

The respondent in O.P.No.1268 of 2022 of the Family

Court, Malappuram has filed this appeal under Section 19(1)

of the Family Courts Act, 1984. He assails the decree dated

13.01.2023 in the said original petition, by which the

marriage contracted between the appellant and the

respondent on 15.09.2002 was dissolved.

2. The appeal was admitted on 02.02.2023. Operation of

the impugned judgment and decree dated 13.01.2023 was

stayed for a period of one month as per the order in I.A.No.1

of 2023. The interim order was extended on 13.03.2023 for a

further period of one month.

3. Heard the learned counsel appearing for the appellant

and the learned counsel appearing for the respondent.

4. The respondent filed O.P.No.1268 of 2022 before the

Family Court, Malappuram to declare that Khula pronounced

by her on 15.08.2022 was valid and thereby her marriage

with the appellant stood dissolved. She contended that after

Mat.Appeal No.72 of 2023

the marriage on 15.09.2002, she along with the appellant

were living peacefully and a child was born in that

relationship. However, when she got employment under the

National Health Mission Scheme in 2015, there arose issues in

their matrimonial relationship. The appellant used to torture

her physically and mentally. She had left the marital company

and that followed mediation, involving members of both the

families. There were such mediations in 2017, 2020 and 2022.

Following mediations on earlier two occasions, they could live

together, but in 2022, no solution could be arrived at. In such

circumstances, the respondent pronounced Khula on

15.08.2022. She informed her readiness to return four

sovereigns of gold ornaments given to her as Maher. It is in

the said circumstances, the respondent filed O.P.No.1268 of

2022.

5. The appellant entered appearance and filed a counter

statement. He refuted the contentions and allegations in the

original petition. He attributed fault on the part of the

respondent. It is contended that the respondent has

psychiatric issues and chemical disorder. He always has been

Mat.Appeal No.72 of 2023

taking care of her. He further contended that there was no

valid pronouncement of Khula.

6. The Family Court, after recording sworn statements of

both the appellant and the respondent, found that there was

prima facie grounds for accepting the Khula pronounced by

the respondent as valid. Accordingly, the Family Court allowed

the original petition accepting the Khula pronounced by the

respondent on 15.08.2022 as valid and passed a decree

dissolving the marriage.

7. The learned counsel appearing for the appellant would

submit that the Family Court did not comply with the

directions in Asbi K.N. v. Hashim M.U. [2021 (6) KHC

159] in allowing O.P.No.1268 of 2022. The learned counsel

would point out that the Family Court did not give opportunity

to the appellant for presenting his case. Since the matter was

considered in a haphazard manner, there was no consideration

as to whether the process of Khula was validly gone through

and the requirements of a valid Khula were met. No mediation

or conciliation was taken place either before pronouncement

of Khula or after filing of O.P.No.1268 of 2022. the learned

Mat.Appeal No.72 of 2023

counsel, in the above circumstances, would submit that the

impugned decree is liable to be set aside.

8. As against the said submissions, the learned counsel

appearing for the respondent would submit that what was

required is only a summary enquiry and satisfaction by the

Family Court that the wife pronounced Khula. From the

impugned judgment itself it is evident that such a procedure

was followed by the Family Court and as such, the learned

counsel would submit, there is no reason to interfere with the

impugned judgment and decree.

9. In X and others v. Y and others [2021 (2) KLT

709] this Court while holding that the Family Court can

endorse an extra-judicial divorce of Khula and declare that the

marriage has been dissolved, it was made clear that there

shall be an enquiry of limited scope in order to ascertain

whether there was such a pronouncement of Khula.

10. In Asbi K.N. (supra), this Court explained the

procedure to be followed while considering a petition filed by

the wife claiming that Khula was pronounced. It was held that

the Family Court has to ascertain whether a valid

Mat.Appeal No.72 of 2023

pronouncement/declaration of Khula was made. This Court

further cautioned that before declaring the Khula as valid, it

should be ensured that it was preceded by an effective

attempt of conciliation. It is further held that the court should

ascertain whether there was an offer by the wife to return the

dower. In order to ascertain those aspects, the court need not

go for a roving enquiry, but can ascertain even from the

Khulanama or written communications, if any, in that regard.

Following guidelines were formulated by this Court in that

regard:-

"(i) On receipt of the petition, the Family Court shall issue notice to the respondent.

(ii) After service of summons or appearance of the respondent, as the case may be, the Family Court shall formally record the statement of both parties. The parties shall also be directed to produce talaq nama/khula nama (if pronouncement/declaration is in writing)/mubaarat agreement.

(iii) The Family Court shall thereafter on perusal of the recitals in talaq nama/khula nama/ communication of talaq, khula or talaq-e-tafweez (if available) and the statement of the parties, ascertain whether there was valid pronouncement of talaq/khula/talaq-e-tafweez. In the case of mubaarat, the Family Court shall ascertain whether the parties have executed and signed mubaarat

Mat.Appeal No.72 of 2023

agreement.

(iv) On prima facie satisfaction that there was valid pronouncement of talaq, khula, talaq-e-tafweez, as the case may be, or valid execution of mubaarat agreement, the Family Court shall proceed to pass order endorsing the extrajudicial divorce and declaring the status of the parties without any further enquiry.

(v) The enquiry to be conducted by the Family Court shall be summary in nature treating it as an uncontested matter.

(vi) The Family Court shall dispose of the petition within one month of the appearance of the respondent. The period can be extended for valid reasons.

(vii) If any of the parties is unable to appear at the Court personally, the Family Court shall conduct enquiry using video conferencing facility."

11. The Family Court had recorded sworn statements of

the appellant and the respondent. On the basis of those

statements, the Family Court entered a finding that there was

prima facie evidence to find that the respondent had

pronounced Khula in accordance with the provisions of the

Shariat Law. As pointed out above in order for declaring a

Khula as valid, the court should be satisfied that there was

such pronouncement, a conciliation process had preceded and

the wife had offered to return the dower. The claims of the

Mat.Appeal No.72 of 2023

respondent with respect to those aspects were refuted by the

appellant. There is nothing on record to show that there was

an attempt for conciliation between the parties before the

respondent pronouncing Khula. It is averred in the petition

that the respondent was prepared to return the dower, but the

evidence does not show that she had offered the appellant

that she was prepared to return the dower. In order for the

pronouncement of Khula to be a valid one, the wife should

have obtained Khula from Mufti under the Muslim Personal

Law as observed by the Apex Court in paragraph No.14 of the

decision in Juveria Abdul Majid Patni v. Atif Iqbal

Mansoori and another [(2014) 10 SCC 736].

12. Even if it is accepted that the respondent

pronounced such a Khula, the court should have satisfied

itself that the other parameters; such as, conciliation and

offer of dower were complied with. Here, the Family Court did

not consider any such aspects. It is true that the Family Court

is not expected to ascertain whether Khula was valid and

pronounced for sufficient reasons. But the Family Court should

ensure that there was pronouncement of Khula, which is

Mat.Appeal No.72 of 2023

preceded by a proper conciliation and offer for return of

dower. Without adverting to any such aspects, the Family

Court rendered the impugned judgment and declared the

Khula pronounced on 15.08.2022 as valid. We are of the view

that the said judgment and decree are not valid for the

aforementioned reasons and liable to be set aside.

Resultantly, the appeal is allowed. The judgment and

decree dated 13.01.2023 are set aside. O.P.No.1268 of 2022

is remitted to the Family Court, Malappuram for fresh

disposal.

Sd/-

ANIL K.NARENDRAN, JUDGE

Sd/-

P.G.AJITHKUMAR, JUDGE dkr