Ahad Haneefa v. Aayisha A.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944 MAT.APPEAL NO. 323 OF 2022** **AGAINST THE ORDER/JUDGMENT IN O.P.(MMA) NO.950/2019 OF FAMILY COURT, CHAVARA** ## **APPELLANT/S:** **AHAD HANEEFA, AGED 31 YEARS, S/O. MUHAMMED HANEEFA, ANDOOR HOUSE, CHENAPPADI, ERUMELI PANCHAYATH, KOTTAYAM DISTRICT, PIN 686 520, REPRESENTED BY HIS MOTHER AND POWER OF ATTORNEY HOLDER SMT. JASMINE HANEEFA, W/O. A.P. MUHAMMED HANEEFA, ANDOOR HOUSE, CHENAPPADI P.O, ERUMELI SOUTH VILLAGE, KOTTAYAM DISTRICT, PIN 686 520.** **BY ADVS. K.SIJU ANJANA KANNATH S.ABHILASH T.S.SREEKUTTY(K/556/2016)** **RESPONDENT/S:** **AAYISHA A., AGED 27 YEARS, D/O. M.A. SALAM, DARULSALAM, PALACKAL VEEDU, THEVALAKKARA VILLAGE, KOLLAM DISTRICT, PIN-690 524.** **BY ADV.B.MOHANLAL** **THIS MAT.APPEAL HAVING BEEN FINALLY HEARD ON 10.08.2022, ALONG WITH OP (FC).276/2022 & TRANSFER PETITION NO. 321/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal No.323/2022 & conn.cases 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944 OP (FC) NO. 276 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OP(OTHERS) 113/2022 OF FAMILY** **COURT, CHAVARA** **PETITIONER/S:** **AAYISHA A., AGED 26 YEARS D/O.M.A.SALAM, DARUL SALAM, PALAKKAL, THEVALAKKARA, KARUNAGAPPALLY, KOLLAM, PIN – 690524.** **BY ADV B.MOHANLAL** ## **RESPONDENT/S:** **AHADH HANEEF, AGED 30 YEARS, S/O.MUHAMMED HANEEFA, ANDOOR HOUSE, CHENNAPPADY P.O., KANJIRAPPALLY, KOTTAYAM-686 520, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AND MOTHER JASMINE HANEEF, W/O. MUHAMMED HANEEFA, ANDOOR HOUSE, CHENNAPPADY P.O., KANJIRAPPALLY, KOTTAYAM-686 520.** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10.08.2022, ALONG WITH Mat.Appeal.323/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal No.323/2022 & conn.cases 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944 TR.P(C) NO. 321 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OP(OTHERS) 113/2022 OF FAMILY** **COURT, CHAVARA** ## **PETITIONER/S:** **AHAD HANEEFA, AGED 31 YEARS, S/O.MUHAMMED HANEEFA, ANDOOR HOUSE, CHENAPPADI, ERUMELI PANCHAYATH, KOTTAYAM DISTRICT, PIN: 686520 REPRESENTED BY HIS MOTHER AND POWER OF ATTORNEY HOLDER SMT.JASMIN HANEEFA, W/O A.P.MUHAMMED HANEEFA, AGED 54 YEARS, ANDOOR HOUSE, CHENAPPADI P.O, ERUMELI SOUTH VILLAGE, KOTTAYAM DISTRICT, PIN: 686520.** **BY ADVS. K.SIJU ANJANA KANNATH T.S.SREEKUTTY** ## **RESPONDENT/S:** **AAYISHA A., AGED 27 YEARS, D/O.M.A SALAM, DARULSALAM, PALACKAL VEEDU, THEVALAKKARA VILLAGE, KOLLAM DISTRICT, PIN: 690 524.** **BY ADVS. B.MOHANLAL ABIJITH M.** **THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2022, ALONG WITH Mat.Appeal.323/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal No.323/2022 & conn.cases 4 ## **JUDGMENT** **[Mat.Appeal No.323/2022, Tr.P.(C) No.321/2022** **& O.P.(FC) No.276/2022]** ## **A.Muhamed Mustaque, J** . These matters are between the same parties. We shall refer the parties by name. Aayisha married Ahad Haneefa as per the muslim ceremonies and rites on 13.9.2018. She approached the Family Court, Chavara, in O.P.(MMA) No.950/2019 for a decree of divorce invoking under Section 2(viii), (a) (d) of the Dissolution of Muslim Marriage Act. On account of delay involved in consideration of the above matter, she approached this Court in O.P.(FC) No.90/2022. This Court,, taking note of the recognition of the extra-judicial divorce permissible to muslim woman invoking Khula as reported in **X v. Y [2021 (2) KLT 967],** allowed her to invoke extra-judicial divorce and move the Family Court to record the same. Accordingly, she resorted to Khula and terminated the marriage. She approached the Family Court to record the same in O.P.(MMA) 950/2019. The Family Court after noting that all conditions of the Khula have been fulfilled, recorded the same in Mat.Appeal No.323/2022 & conn.cases 5 O..P(MMA)No.950/2019 as per the judgment dated 11.4.2022 and disposed the above case. Challenging the recording of Khula, Ahad Haneefa approached this Court in Mat.Appeal No.323/2022. In the meanwhile, he also approached the Family Court, Chavara, in O.P(Others).No.113/2022 challenging the extrajudicial divorce invoked by Aayisha. In that, he filed interlocutory applications restraining Aayisha from contracting second marriage on the strength of Khula invoked by her. The Family Court as per the order in the interlocutory application granted interim injunction. Aggrieved by the interim injunction, Ayisha approached this Court in O.P.(FC) No.276/2022. This Court on 20.05.2022, passed the following order: ' _Admit._ _2. Issue notice to the respondent by speed post. 3. In the matrimonial dispute pending before the Family Court, the wife who is a Muslim woman invoked extra-judicial divorce. In that proceedings, the Family Court recorded the extra-judicial divorce and declared that the parties are no longer husband and wife. After the declaration, the respondent who was the former husband moved a petition before the same Family Court by separate proceedings and obtained an order of ad-interim injunction restraining the petitioner from contracting_ Mat.Appeal No.323/2022 & conn.cases 6 _any other marriage. We are of the prima facie view that the Family Court had not applied its mind before granting such relief._ _In such circumstances, we are of the view that the impugned order has to be stayed. Accordingly, it is stayed. We make it clear that on the basis of the stay granted by this Court, the petitioner has no impediment in contracting any other marriage in accordance with law and the Mahal Committee can take note of this order for registering any marriage in accordance with law. Post along with Mat.Appeal No.323/2022.'_ 2. Thereafter, it is now submitted at the Bar that Aayisha contracted another marriage in accordance with the Muslim ceremonies and rites. 3. Ahad Haneefa also moved this Court in a transfer petition as Transfer Petition (Civil) No.321/2022 to transfer O.P.(Others) No.113/2022 pending before the Family Court, Chavara, to any other Family Court outside Kollam District. This was citing that Aayisha's father is a practising lawyer who is a Bar Association Executive Committee Member in Kollam and he is having acquaintance with the presiding officer of the Family Court, Kollam. 4. The entire matter now revolves around the validity of the decree in O.P.(MMA) No.950/2019. The court, in fact, Mat.Appeal No.323/2022 & conn.cases 7 acknowledges that Khula exercised by Aayisha was valid. The Family Court noted that all the procedures to invoke Khula by Muslim wives have been followed in the matter and declared the marital status. No doubt, the aggrieved person can challenge the same in an appeal pointing out any irregularity about Khula. Having gone through the judgment endorsing the exercise of Khula by Aayisha, we find that there is no irregularity or infirmity in recording the same by the Family Court. This Court in **X v.Y** 's case ( _supra_ ) had held that in a pending matter also the Family Court can record extrajudicial divorce invoked by a party and dissolve the same. In view of the fact that all the procedures have been complied with to invoke Khula, we only need to affirm the findings in O.P.(MMA)No.950/2019. Accordingly, we are of the view that the appeal has to be dismissed. We do so. Coming back to the challenge in the interim injunction granted in O.P.(Others) No.113/2022, we are of the view that in view of the decree and binding judgment between the parties in O.P.(HMA) No.950/2019, the Family Court committed grave error in granting interim injunction. Therefore, the above order has to be set aside. Accordingly, we set aside Mat.Appeal No.323/2022 & conn.cases 8 the impugned order in O.P.(FC) No.276/2022. ## Transfer Petition (Civil) No.321/2022 We already noted the binding judgment between the parties in O.P.(MMA)No.950/2019 which has been affirmed by this Court by dismissing Mat.Appeal No.323/2022. Nothing further survives for consideration by the Family Court. Therefore, there is no necessity to transfer the case from the Family Court, Chavara, to any other Family Court outside Kollam District. Therefore, we dismiss this Transfer Petition(Civil). We direct the Family Court, Chavara, to conclude the proceedings in O.P.(Others) No.113/2022 in the light of the affirmation of the decree granted in O.P.(MMA) No.950/2019, without any delay, at any rate, within one month. No order as to costs. **Sd/-** ## **A.MUHAMED MUSTAQUE, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** ln Mat.Appeal No.323/2022 & conn.cases 9 ## **APPENDIX OF OP (FC) 276/2022** **PETITIONER'S EXHIBITS: EXHIBIT.P1 THE TRUE COPY OF THE PLAINT IN O.P. (MMA)NO:950/2019 DATED 22/11/2019 FILED BY THE PETITIONER AGAINST THE RESPONDENT BEFORE THE FAMILY COURT, CHAVARA EXHIBIT.P2 THE TRUE COPY OF THE AGREEMENT DATED 07/03/2021 ENTERED INTO BETWEEN THE PARTIES. EXHIBIT.P3 THE TRUE COPY OF THE ORDER DATED 18/01/2022 IN O.P.NO:06/2022 IN O.P.NO:950/2019 OF THE FAMILY COURT, CHAVARA EXHIBIT.P4 THE TRUE COPY OF THE JUDGMENT DATED 17.02.2022 IN O.P.(FC) NO.90/2022OF THIS HON'BLE COURT. EXHIBIT.P5 THE TRUE COPY OF THE KHULA DATED 04.03.2022ISSUED BY THE PETITIONER TO THE RESPONDENT EXHIBIT.P6 THE TRUE COPY OF THE LETTER ISSUED BY THE RESPONDENT AGAINST EXT.P5 DATED 07.03.2022 EXHIBIT.P7 THE TRUE COPY OF THE JUDGMENT DATED 11/04/2022 IN O.P.NO.950/2019 OF THIS HON'BLE COURT. EXHIBIT.P8 THE TRUE COPY OF THE PLAINT O.P.(OTHERS) NO.113/2022 DATED 04/04/2022 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, CHAVARA EXHIBIT.P9 THE TRUE COPY OF THE AD-INTERIM INJUNCTION DATED 16.04.2022 IN I.A NO.2/2022 IN O.P(OTHERS) NO.113/2022 FAMILY COURT, CHAVARA EXHIBIT10 THE TRUE COPY OF THE LETTER ISSUED BY THE RESPONDENT TO THE SECRETARY OF KOTTUKADU MUSLIM JAMATH, CHAVARA** Mat.Appeal No.323/2022 & conn.cases 10 ## **APPENDIX OF TR.P(C) 321/2022** ## **PETITIONER'S ANNEXURES** **ANNEXURE A1** **TRUE COPY OF THE OP (OTHERS) NO. 113/2022 FILED BEFORE THE FAMILY COURT, CHAVARA DATED 4.4.2022.** ## **ANNEXURE A2** **TRUE COPY OF THE JUDGMENT IN OP(MMA) 950/2019 DATED 11.04.2022 ON THE FILE OF FAMILY COURT, CHAVARA.** ## **RESPONDENT'S ANNEXURES:** **ANNEXURE-R1(A) : TRUE COPY OF THE JUDGMENT DATED 17.02.2022 IN O.P.(FC) NO.90/2022 OF THIS HONOURABLE COURT.** **ANNEXURE-R1(B) : TRUE COPY OF THE JUDGMENT DATED 11.04.2022 ALLOWING O.P.(MMA) NO.950/2019 OF THE FAMILY COURT, CHAVARA.** **ANNEXURE-R1(C) : TRUE COPY OF THE AD-INTERIM INJUNCTION IN I.A.NO.2/2022 IN O.P.(OTHERS) NO.113/2022 DATED 16.04.2022 OF THE FAMILY COURT, CHAVARA.** **ANNEXURE-R1(D) : TRUE COPY OF THE ORDER DATED 20.5.2022 IN O.P.(FC) NO.276/2022 OF THIS HONOURABLE COURT.** **ANNEXURE-R1(E) : TRUE COPY OF THE MARRIAGE CERTIFICATE NO.94/2022 DATED 22.06.2022 ISSUED BY THE KOTTUKADU MUSLIM JAMATH COMMITTEE TO THE RESPONDENT.**