Magitha Beevi v. Jameela Beegam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **TUESDAY, THE 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943** **MAT.APPEAL NO. 150 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OP 1195/2010 OF FAMILY** **COURT,ERNAKULAM, ERNAKULAM** ## **APPELLANT/S:** - 1 **MAGITHA BEEVI, D/O.MUHAMMED HANEEFA, THEKKUMURI HOUSE, VAKKAM DESOM, VAKKAM VILLAGE, NOW RESIDING AT VAHIDH MANDHIRATHIL, THATTATHUMALA DESOM, PAZHAYAKUNNUMMEL VILLAGE. (DIED).** - 2 **ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED.** **SHIBU, AGED 42 YEARS, S/O.ABDUL VAHEED, VAHEED MANDIRAM, THATTATHUMALA.P.O., THIRUVANANTHAPURAM DISTRICT, PIN -695 614.** - 3 **SHYNA.A., AGED 39 YEARS, D/O.ABDUL VAHEED, VAHEED MANDIRAM, THATTATHUMALA.P.O., THIRUVANANTHAPURAM DISTRICT, PIN -695 614.** 4 **SHEENA, AGED 37 YEARS, D/O.ABDUL VAHEED, VAHEED MANDIRAM, THATTATHUMALA.P.O., THIRUVANANTHAPURAM DISTRICT, PIN - 695 614.** **THE LEGAL HEIRS OF THE DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 4 AS PER ORDER DATED 21/8/19 IN IA 1/2019 IN MAT.APPEAL 150/13.** **BY ADV SRI.M.P.MADHAVANKUTTY** **Mat.Appeal No.150/2013 2** ## **RESPONDENT/S:** **JAMEELA BEEGAM, PATTIKKAD, WARD NO.VI/73, MARAYOOR DESOM, DEVIKULAM TALUK, IDUKKI DISTRICT-685 613.** **BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR SRI.S.K.HARISH** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal No.150/2013 3** ## **JUDGMENT** . A.Muhamed Mustaque, J One Abdul Waheed was a Government Servant. He retired from the service on 30.04.1998. A dispute arose between Magitha Beevi and Jameela Beegam in regard to the claim for pensionary benefits due to the deceased Abdul Waheed. Magitha Beevi who is the appellant herein approached the Family Court, Ernakulam, to declare that she was the only legally wedded wife of the deceased Abdul Waheed. The respondent, Jameela Beegam claimed that she was also a legally wedded wife of the deceased Abdul Waheed. The Family Court tried the matter and declared that both Magitha Beevi and Jameela Beegam were legally wedded wife of the deceased Abdul Waheed. Not being satisfied with the judgment of the Family Court, Magitha Beevi is before us. Pending the appeal, Magitha Beevi died and her children are now prosecuting this appeal. **Mat.Appeal No.150/2013 4** 2. There is no dispute to the fact that Magitha Beevi married Abdul Waheed on 9.12.1973. In that wedlock, three children were born. 2. Jameela Beegam married Abdul Waheed on 16.06.2000. Under the personal law applicable to the parties, there is no prohibition to Abdul Waheed from contracting the second marriage whilst his first marriage subsists. 3. However, the dispute centered around the legal separation of Jameela Beegam from her former husband, Basheerkutty. Admittedly, Jameela Beegam married Basheerkutty prior to her alleged marriage with deceased Abdul Waheed. According to her, the marriage was legally separated on 20.05.1994. She produced Ext.X2 copy of agreement. Ext.X2 would show that both Basheerkutty and Jameela Beegam mutually agreed to separate on the terms and conditions mentioned therein. **Mat.Appeal No.150/2013 5** 4. The dispute now surmounts on the validity of Ext.X2. The learned counsel for the appellant pointed out the evidence of PW4, Basheerkutty, one of the alleged signatories to Ext.X2. It is submitted that PW4, Basheerkutty denied his signature in the agreement. 5. The short question, therefore, arises for consideration in this matter whether there was a legal separation of the marriage between Jameela Beegam and Basheerkutty. 6. Ext.B3 is the marriage certificate issued by the local Jammath to evidence the marriage between Jameela Beegam and Abdul Waheed. 7. RWs 2 and 3 are the sisters of Abdul Waheed. They admitted the marriage of Jameela Beegam with Abdul Waheed. 8. Under the Muslim Personal Law, a guardian of the bride contracts the marriage on behalf of the bride with the bridegroom. It is in that background, the alleged denial of the signature by Basheerkutty in Ext.X2 will have to be considered. **Mat.Appeal No.150/2013 6** 9. Ext.A10 is another agreement executed between Jameela Beegam and Basheerkutty. The said agreement was executed on 17.10.2006. In that agreement, she referred to the separation of the marriage with Basheerkutty. Basheerkutty in cross-examination accepted the existence of Ext.A10 and also admitted the fact of purchase of stamp paper for such agreement by him. Basheerkutty had never disowned the contents in Ext.A10. The contents of Ext.A10 would clearly establish the separation of marriage. It is in that background, this Court has to analyse Ext.X2. If Basheerkutty accepts Ext.A10 wherein a separation of marriage has been mentioned, he has to explain how the spouses were separated and in what manner. On the other hand, he completely denied the factum of divorce. In the wedlock between Jameela Beegam and Abdul Waheed, two children were born. The background as above would clearly show that Basheerkutty had legally divorced Jameela Beegam. **Mat.Appeal No.150/2013 7** 10. The learned counsel for the appellant submits that under the Muslim Law legal separation would only happen when there is a pronouncement of Talaq and Ext.X2 cannot be treated as a mode of separation under personal law. 11. There cannot be any dispute in regard to the existence of extra-judicial divorce among Muslims as allowed to them under Muslim Personal Law (Shariat) Application Act, 1937. The statutory provision itself recognise the different modes of extra-judicial divorce. The divorce by mutual consent under personal law is known as Mubaraat. No separate mode is prescribed for such separation. If the parties mutually agreed for separation, that is called Mubaraat under personal law. See the Division Bench judgment of this Court in X v. Y [2021 (2) KLT 967]. 12. Ext.X2, therefore, has to be treated as a Mubaraat as the parties had mutually agreed for separation. It is also to be noted that Jameela Beegam was living with Abdul Waheed and **Mat.Appeal No.150/2013 8** Basheerkutty never had chosen to question the relationship. It is also to be noted that he obtained material gain based on the agreement with Jameela Beegam as reflected from Ext.A10. He has no case that he never received anything based on the agreement as referred to in Ext.A10. The totality of the facts clearly would establish that there was a valid legal marriage between Jameela Beegam and deceased Abdul Waheed after the separation of the marriage of Jameela Beegam with Basheerkutty. In that background, we find no infirmity with the impugned judgment. The Mat. Appeal fails and it is dismissed. No costs. **Sd/A.MUHAMED MUSTAQUE JUDGE** **Sd/SOPHY THOMAS JUDGE** ln