Kerala High Court

Naziya Parveen N vs Sadiq Pasha on 29 February, 2024

Author: Anu Sivaraman

Bench: Anu Sivaraman

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
                                  &
           THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
  THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
                   MAT.APPEAL NO. 813 OF 2023
              OP 593/2021 OF FAMILY COURT, PALAKKAD
APPELLANT(S)/PETITIONER

          NAZIYA PARVEEN N
          AGED 31 YEARS
          D/O LATE NIZAM ALI C, RESIDING AT 'BAIT AL
          NIZAM',15/145, CHITTUR, PALAKKAD-678101, CURRENTLY
          RESIDING AT AI YARMOUK TIGER BUILDING, C BLOCK, FLAT
          NO. 2902, AI NAHDA, SHARJAH, UAE, REPRESENTED BY POWER
          OF ATTORNEY HOLDER, AYISHA MIRFCH P, AGED 30 YEARS,
          D/O ABDULLA P, RESIDING AT 'POYILIL', KIZHAKOTH,
          KOZHIKODE, PIN - 673572
          BY ADVS.
          M.H.ASIF ALI
          S.MUHAMMED HANEEFF
          ARAVIND T RAMESH
          RAJANA JOSE
          ASHIK ALI M.H.


RESPONDENT(S)/RESPONDENT

          SADIQ PASHA
          AGED 38 YEARS
          S/O HAMZA, RESIDING AT 'PERUVANKUZHIYIL ' ,
          PERUMPUZHA, VALAKOLAM P.O, MALAPPURAM, PIN - 676508
          BY ADV AHAMED FAZIL E.C.

     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
21.02.2024, THE COURT ON 29.02.2024 DELIVERED THE FOLLOWING:
 Mat.Appeal 813 of 2023
                                           2


               ANU SIVARAMAN & C.PRATHEEP KUMAR, JJ.
               ------------------------------------------------------------------
                               Mat.Appeal No.813 of 2023
                                ---------------------------------
                                Dated : 29th February, 2024

                                       JUDGMENT

C.Pratheep Kumar, J.

1. This is an appeal filed by the petitioner in O.P.593/2021 on the file of the

Family Court, Palakkad against the judgment dated 30.6.2023 dismissing

the above O.P. The appellant filed the above O.P. against her husband

seeking a decree for endorsing an extra judicial divorce under the Muslim

Personal Law and also for a declaration as to the marital status of the

appellant. As per the impugned judgment, the Family Court dismissed the

O.P. Aggrieved by the same she preferred this appeal raising various

grounds.

2. The marriage of the appellant with the respondent was solemnized on

9.5.2015 as per the customary rites of the Muslim Personal law.

According to the appellant, due to difference of opinion, they started

living separately and in spite of mediation and conciliation made at

various levels they could not reconcile their difference of opinion and the

marital relationship between them has broken down irretrievably. The Mat.Appeal 813 of 2023

appellant had filed a divorce petition before the competent Court in Dubai

wherein counseling/mediation was held on 18.11.2019, 5.2.2020 and

10.3.2020, which were unsuccessful. The respondent assaulted the

appellant to withdraw the case in UAE and a criminal case was also

registered against the respondent. The Dubai Court dismissed the divorce

petition. However in appeal, the Court granted divorce. During the

pendency of the appeal, since all attempts for reconciliation failed, she

invoked Khula and offered to hand over Mehr to the respondent vide

Khula deed dated 26.4.2021 which was sent to the respondent which he

received on 29.4.2021. Though the marriage is dissolved by way of

Khula, in order to make necessary changes in the official records, she

preferred the O.P for recognition of the Khula w.e.f. 26.4.2021.

3. Before the Family Court, the respondent appeared and strongly opposed

the petition. According to him there was no effective mediation or

reconciliation process before invoking Khula. It is also contended that the

respondent filed O.P.823/2020 before the Family Court, Tirur and

obtained an ex parte decree for restitution of conjugal rights. In the above

circumstances, the learned counsel for the respondent would argue that

there is nothing wrong in the impugned order passed by the Family Court.

On the other hand, the learned counsel for the appellant would argue that

the scope of enquiry in the matter of Khula is very limited and if there is Mat.Appeal 813 of 2023

any serious challenge to the Khula, the remedy of the respondent is to file

a separate proceeding.

4. In Asbi K.N. v. Hashim M.U, 2021 (6) KHC 129, a Division Bench of

this Court held that if the Court is prima facie satisfied that there was

valid pronouncement of talaq, khula, talaq-e-tafweez, it shall endorse the

same and declare the status of the parties. It was also directed that the

Court shall pass formal order declaring the marital status of the parties

without any delay. The Division Bench also formulated the following

guidelines be followed by the Family Court in a petition filed to endorse

an extra judicial divorce under the Muslim Personal Law and to declare

the marital status of the parties to the marriage:

"(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, Mat.Appeal 813 of 2023

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 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.