Mohammed Thahir P.K. v. Shabna Beevi K

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945** **RPFC NO. 271 OF 2022** **MC 257/2018 OF FAMILY COURT, ERNAKULAM** ## **REVISION PETITIONER/S:** MOHAMMED THAHIR P.K. AGED 39 YEARS, S/O ABDULKADER, PATTAKALKADE HOUSE, ANTHROTH ISLAND, UNION TERRITORY OF LAKSHADWEEP, WORKING IN THE OFFICE OF COMMANDANT AS CONSTABLE, INDIAN RESERVE BATTALION, KADAMAM ISLAND, UNION TERRITORY OF LAKSHADWEEP - 682556,(KADAMAM POLICE STATION) BY ADVS. ANZIL SALIM AKASH GEORGE SANJAY SELLEN SNITA ROSE BENJAMIN LAL K.JOSEPH P.MURALEEDHARAN (THURAVOOR) T.A.LUXY SURESH SUKUMAR SONIA SHIBU ## **RESPONDENT/S:** SHABNA BEEVI K AGED 32 YEARS AGED 32 YEARS, D/O ASLAM K.F, KUNNEL HOUSE, NOW RESIDING AT EDAPAKATH HOUSE, ILLATHUPADI LANE, EDAVANAKKAD, KOCHI TALUK, ERNAKULAM DISTRICT – 682502. BY ADVS. C.Y. VINOD KUMAR K.A.JALEEL(K/80/1981) **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD** **ON 29.05.2023, THE COURT ON 06.06.2023 DELIVERED THE FOLLOWING:** RPFC No.271 of 2022 -2- ## **ORDER** Dated this the 06[th] day of June, 2023 The revision petitioner was the respondent in M.C.No.257 of 2018 filed by his wife (the respondent herein) before the Family Court, Ernakulam claiming maintenance allowance at the rate of Rs.35,000/- per month. By the impugned judgment, the Family Court directed the revision petitioner to pay monthly maintenance at the rate of Rs.10,000/-, from the date of petition until the respondent's claim as a divorced wife is duly settled under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The essential facts are as under; The marriage between the parties was solemnised on 29.08.2004 at Kalpeni Island in Lakshadweep. In the wedlock, two children were born, the elder child on 29.05.2005 and the younger, on 06.02.2009. The respondent alleged RPFC No.271 of 2022 -3- that she was forced to flee from her matrimonial home due to the cruel behaviour of the revision petitioner. The revision petitioner refuted the allegation and submitted that the respondent was never willing to perform her duties as a wife and mother. On the other hand, she was bent upon leading an independent life, according to her whims and fancies. With that objective in mind, the respondent had voluntarily left the company of the revision petitioner and children after executing an agreement and giving up all her claims, including the claim for maintenance. 2. While the revision petitioner's case before the Family Court was primarily based on Annexure A1 registered agreement dated 20.04.2018 and portions of the respondent's testimony before the Family Court, the respondent questioned the sanctity of the agreement and assailed its legality on the premise that the agreement was executed under duress and is against public RPFC No.271 of 2022 -4- policy. The Family Court accepted the respondent's contention and found the terms of the agreement to be against public policy. The court also found that from the manner in which the agreement is couched, it is evident that the respondent was forced to sign the document under coercion and duress. 3. Heard Adv.Lal K.Joseph for the revision petitioner and Adv. C.Y. Vinod Kumar for the respondent. 4. Learned Counsel for the revision petitioner contended that, insofar as the respondent had given up her claim for maintenance and expressed willingness for divorce by way of 'Khula', the Family Court committed gross illegality in directing the revision petitioner to pay maintenance. Moreover, in her crossexamination, the respondent had specifically stated that she was seeking only divorce and is not demanding any compensation receivable by a RPFC No.271 of 2022 -5- Muslim lady. By making such a statement, the respondent had waived her rights under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. 5. It is contended that as per Islamic Law, marriage is a contract and both man and his wife are provided with the right to release themselves from the matrimonial tie without facing the hurdle of prolonged litigation. This position is explicitly laid down by a Division Bench in _**X and others v. Y and others [2021 (2)**_ _**KHC 709]**_ . Even otherwise, having executed an agreement which was subsequently registered and not having made any effort to cancel the deed in the manner prescribed in Section 19A of the Contract Act, the court below could not have eschewed the document from evidence, by holding that it was executed under duress and undue influence. In support of this contention, RPFC No.271 of 2022 -6- reliance is placed on the decisions in _**Prem Singh v. Birbal [(2006) 5 SCC 353]**_ and _**Bellachi (Dead) by L.Rs v. Pakeeran [(2009) 12 SCC 95]** and_ _**Placido Francisco Pinto (D) by Lrs and another v. Jose Francisco Pinto and another [2021 SCC OnLine 842]**_ . 6. The further contention is that, had the court below followed the guidelines stipulated by the Apex Court in _**Rajnesh v. Neha and another [(2021) 2 SCC 324]**_ , the revision petitioner would not have been mulcted with the liability of paying Rs.10,000/- as maintenance every month. Moreover, while fixing the quantum, the Family Court failed to consider the revision petitioner's salary and the educational and other expenses of the children being met by the revision petitioner, since the respondent abandoned them to lead a life of her choice. 4. Learned Counsel for the respondent RPFC No.271 of 2022 -7- submitted that the respondent was forced to flee from her matrimonial home due to the incessant cruelty by the revision petitioner and his family members. It is pointed out that the parties had approached the Family Court on an earlier occasion and the disputes were settled. Pursuant to the settlement, the respondent had commenced residence with the revision petitioner. Unfortunately, there was no change in the behaviour of, either the revision petitioner or his family members. As it became impossible for the respondent to continue in the house, she boarded a ship in an attempt to leave Lakshadweep. As the respondent did not have money to buy the ticket, she was de-boarded. At that point, the revision petitioner's family caught hold of the respondent and forced her to execute the agreement and submit a petition before the police stating that she had no complaints. As the documents were not executed out of the RPFC No.271 of 2022 -8- respondent's free will, the Family Court rightly refused to rely on those documents. 7. It is argued that even if the agreement is taken to have been properly executed, the terms therein, especially the term by which the respondent is shown to have given up her right to maintenance and compensation, has no legal validity, the same being against public policy. Even going by the recitals in the agreement, the respondent had only consented for severing the matrimonial tie by resorting to Khula. The procedure prescribed under the Muslim Personal Law having not been followed thereafter, the contention that divorce had come into effect can only be rejected. The Family Court having taken into account all relevant factors for arriving at the quantum of maintenance, no interference is warranted in exercise of the revisional jurisdiction. 8. As contended by the Counsel for the RPFC No.271 of 2022 -9- revision petitioner, a registered document is presumed to have been validly executed and the onus of proof is on the person assailing the document _[see_ _**Prem Singh**_ , _**Placido Francisco**_ _**Pinto** (supra)_ ]. Further, as held in _**Bellachi** (supra)_ , there cannot be any presumption in favour of undue influence and the party alleging the same must prove that factor. 9. Coming to the facts of the case under consideration, the one sided manner in which the agreement is worded, is sufficient to create doubts regarding its sanctity. The initial part of the document is more like a confession of her misdeeds by the respondent and the terms in the latter part of the document are fully loaded in favour of the revision petitioner. The circumstance under which the document was executed fortifies the suspicion. There is also substance in the finding of the Family Court that RPFC No.271 of 2022 -10- it is difficult to digest the unwholesome hurry shown in executing the document through the power of attorney holder of the revision petitioner. 10. The revision petitioner's contention that the respondent having relinquished her right to claim maintenance through a registered document, the Family Court could not have ordered otherwise, militates against the object of Section 125 Cr.P.C, which is to prevent vagrancy and destitution of neglected wives and children. The public policy being thus, even the beneficiaries cannot waive the right conferred by the provision, as it will have an adverse social impact. This position has been clearly laid down in _**Rajesh R.Nair v. Meera Babu [2013 (1) KLT 899]**_ , the contextually relevant portion of which reads as under; _“Section 125 of Cr.P.C. is a provision incorporated in the Cr.P.C. by the Parliament enabling certain categories of persons_ RPFC No.271 of 2022 -11- _including a wife to claim maintenance. Under this Section, a wife who is unable to maintain herself can claim a monthly allowance for her maintenance from her husband having sufficient means when he neglects or refuses to maintain her. Thus, the right to claim maintenance provided to the wife is a statutory right created by the Parliament. This is for achieving the goal of protecting a wife who is unable to maintain herself to claim maintenance from her husband having sufficient means when he neglects or refuses to maintain her. The public policy of protecting such women is reflected in S.125 of Cr.P.C. In other words, it is a benevolent provision enabling a weaker section of the society to earn their livelihood. An agreement by which a wife waives her right guaranteed under S.125 of Cr.P.C. will only be an agreement against public policy. An agreement against public policy is void. Therefore, a clause of waiver incorporated in Ext.P4 agreement by which the wife has given up her right to claim maintenance from the husband is void and hence, unenforceable.”_ In _**Vikraman Nair and another v. Aiswarya and another [2018 5 KHC 156]**_ , referred in the impugned judgment, it is held that, any contract RPFC No.271 of 2022 -12- which is opposed public policy is void under Section 23 of the Indian Contract Act, 1872 and the same cannot be enforced by a court of law. In this context, it is pertinent to note that the expression 'public policy' has not been defined in the Contract Act and is incapable of precise definition. _Winfield_ has defined 'public policy' as a principle of judicial legislation or interpretation founded on the current needs of the community. Understood in that manner, Clause 4 of the agreement, by which the respondent relinquished her right to claim maintenance is opposed to public policy and therefore void. 11. The other contention is based on Clause I of the agreement. A rough translation of Clause 1 of the agreement is as follows; _'The fifth party hereby agrees completely for_ _dissolving her marriage with the first party by way of Khula.'_ Even the revision petitioner has no case that, RPFC No.271 of 2022 -13- other than expressing consent for Khula, nothing further was done either by the respondent or the petitioner. As held in _**Juveria Abdul Majid Patni v. Atif Iqbal Mansoori [(2014) 10 SCC 736],**_ the wife's proposal for dissolution of marriage, based on a mere ex parte fatwa (advisory opinion) of Khula (divorce) obtained from the Mufti (juris consult), without clear proof of acceptance or proposal of dissolution of marriage by the husband or without issuance of Qaza (judgment) of Khula by Qazi (Judge), is ineffectual in effecting divorce. As no steps in furtherance of the petitioner's consent of khula was taken in accordance with the Muslim Personal Law, the contention based on Clause 1 of the agreement can only be rejected. The contention that the quantum of maintenance was arrived at without taking into account the parameters set out in _**Rajnesh**_ RPFC No.271 of 2022 -14- _(supra)_ , is of no avail since Rs.10,000/- per month is a reasonable amount, considering the income and social status of the revision petitioner. For the aforementioned reasons, the revision petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ RPFC No.271 of 2022 -15- ## **APPENDIX OF RPFC 271/2022** |PETITIONER ANNEXURES|PETITIONER ANNEXURES| |---|---| |Annexure A1|EXHIBIT B1(A) - REGISTERED DEED NO.| ||17/2018 OF SRO ANDROTT ISLAND| |Annexure A2|COPY OF THE CROSS EXAMINATION OF| ||PW1/RESPONDENT| |Annexure A3|A TRUE COPY OF THE EXHIBIT B4, E-| ||TICKET FOR FLIGHT| |Annexure A4(a)|EXHIBIT B4(A) - BOARDING PASS| |Annexure A4(b)|EXHIBIT B4(B) - BOARDING PASS| |Annexure A4(c)|EXHIBIT B4(C) - BOARDING PASS| |Annexure A5|A TRUE COPY OF THE ASSETS AND| ||LIABILITIES SUBMITTED BY THE| ||RESPONDENT| |Annexure A6|A TRUE COPY OF THE EXHIBIT B7| |Annexure A7|TRUE COPY OF THE EXHIBIT B11| |Annexure A8|TRUE COPY OF THE EXHIBIT B12| |Annexure A9|TRUE COPY OF THE EXHIBITS B11(C)| |Annexure A10|TRUE COPY OF THE EXHIBIT B12(C)| |Annexure A11|TRUE COPY OF THE CRMP NO. 689/2018| |Annexure A12|TRUE COPY OF THE OBJECTION TO CRMP NO.| ||689/2018| |Annexure A13|TRUE COPY OF THE ASSETS AND LIABILITY| ||AFFIDAVIT OF THE PETITIONER|