Muhammed Shafi v Jasna and Abdul Jameel and The Secretary, VadaKe MylaKKad Muslim Jama-ath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 16TH DAY OF MARCH 2018 / 25TH PHALGUNA, 1939 OP (FC).No. 88 of 2018 (AGAINST THE ORDER DATED 13.12.2017 IN I.A.NO.2617/2017 IN O.P.NO.1524/2017 OF THE FAMILY COURT, ATTINGAL) PETITIONER: MUHAMMED SHAFI, AGED 35 YEARS, S/O. ASANARKUNJU, RESIDING AT SHAFI MANZIL, MYLAKKADU DESOM, MYLAKKADU P.O., ADICHANALLOOR, CHIRAYINKEEZHU, KOLLAM TALUK. BY ADV.SRI.T.H.ABDUL AZEEZ RESPONDENTS: 1. JASNA, AGED 30 YEARS,D/O. ABDUL BUHARI, RESIDING AT JASNA MANZIL, MANKONAM DESOM, MADAVOOR, MADAVOOR VILLAGE, CHIRAYINKEEZHU-695 304. 2. ABDUL JAMEEL, S/O. ASSANARKUNJU, AGED 43 YEARS, VAZHAVILAVEEDU, MYLAKKADU, ADICHANALLUR, KOLLAM TALUK-691 571. 3. THE SECRETARY, VADAKE MYLAKKADU MUSLIM JAMA-ATH, MYLAKKADU, KOLLAM TALUK-691 571. R1 BY ADV. SRI.LATHEESH SEBASTIAN SRI.C.P.MOHAMMED NIAS ( _AMICUS CURIAE_ ) THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13-03-2018, THE COURT ON 16-3-2018 DELIVERED THE FOLLOWING: OP (FC).No. 88 of 2018 (R) APPENDIX ## PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF O.P.1524/17 ON THE FILE OF THE FAMILY COURT, ATTINGAL. EXHIBIT P2: TRUE COPY OF THE PETITION IN O.P.(M.M.A) 261/16. EXHIBIT P3: TRUE COPY OF THE 1ST TALAQ LETTER SENT TO THE PETITIONER'S JAMA-ATH ON 25/3/2017. EXHIBIT P4: TRUE COPY OF THE 2ND TALAQ LETTER SENT BY THE PETITIONER ON 03/05/2017. EXHIBIT P5: TRUE COPY OF THE 3RD TALAQNAMA TO THE 1ST RESPONDENT ON 7-10-2017. EXHIBIT P6: TRUE COPY OF THE COVERING LETTER DATED 9-4-2017 SENT BY THE 1ST RESPONDEN'S JAMA-ATH. EXHIBIT P7: TRUE COPY OF THE COVERING LETTER DATED 19/5/2017 SENT BY THE 1ST RESPONDENT'S JAMA-ATH. EXHIBIT P8: TRUE COPY OF THE COVERING LETTER DATED 14/10/2017 SENT BY THE 1ST RESPONDENT'S JAMA-ATH. EXHIBIT P9: TRUE COPY OF ORDER DATED 13-12-2017 IN I.A.NO.2617/2017 IN O.P.1524/2017 OF THE FAMILY COURT, ATTINGAL. RESPONDENTS' EXHIBITS: EXHIBIT R1(A) TRUE COPY OF THE PETITION IN O.P.NO.41/2018 BEFORE THE FAMILY COURT, ATTINGAL. -TRUE COPY- PS TO JUDGE ## “CR” ## V. CHITAMBARESH & K.P.JYOTHINDRANATH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## OP(FC) No.88 of 2018 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16[th] day of March, 2018 ## Judgment ## Chitambaresh, J. 1.Chapter 4 Verse 3 of Qur'an says: “If you fear that you might not treat the orphans justly, then marry the women that seem good to you: two, or three, or four. If your fear that you will not be able to treat them justly, then marry (only) one, or marry from among those whom your right hands possess. This will make it more likely that you will avoid injustice.” 2.The petitioner married the first respondent on 9.11.2006 as OPFC88/2018 -: 2 :- per the Muslim religious rites and a child now aged 8½ years has been born in the wedlock. There was marital discord thereafter and the petitioner divorced the first respondent by pronouncing Talaq. The Talaq was pronounced on three different dates namely 25.3.2017, 3.5.2017 and 7.10.2017 evident by the communications. The first respondent was duly informed about the Talaq through the local Jama-ath to whom the communications were addressed. This led to a series of litigations between the parties on the file of the Family Court which are still pending disposal. - 3.The details of the cases pending on the file of the Family Court are as follows: i. M.C.No.74/2016 filed by the first respondent for maintenance. ii. O.P.No.261/2016 filed by the first respondent for dissolution of marriage. OPFC88/2018 -: 3 :- iii. O.P.No.894/2016 filed by the first respondent to set aside a sale deed. iv. O.P.No.152/2017 filed by the first respondent for realisation of money. v. O.P.No.153/2017 filed by the petitioner for custody of the child. vi. O.P.No.41/2018 filed by the petitioner for declaration that the Talaq is valid. vii. O.P.No.1524/2017 filed by the first respondent for injunction against remarriage. 4.The principal relief sought in O.P.No.1524/2017 is for a decree of injunction restraining the petitioner from remarrying another till all the cases are disposed of. The first respondent has also sought an injunction against the Jamaath from granting permission for the re-marriage. O.P.No.1524/2017 was accompanied by I.A.No.2617/2017 OPFC88/2018 -: 4 :- for an ad interim order of injunction wherein the court below has passed the following order ex parte on 13.12.2017: “Heard the counsel for the petitioner. Perused the affidavit and the documents produced. I am satisfied that the petitioner has a prima facie case and if the injunction is not granted irreparable injury will be caused to her. Delay will defeat the purpose of injunction. Hence dispensing with notice. Hence the 1[st] respondent is hereby restrained by this order from contracting a marriage with another woman until the monetary claims of the petitioner are settled and the 3[rd] respondent is restrained from giving permission to the 1[st] respondent for contracting another marriage until further orders. Petitioner shall comply with order 39 rule 3 CPC.” OPFC88/2018 -: 5 :- 5.The petitioner has challenged the ex parte order of injunction contending that his personal law permits him to have as many as four wives at a time. There could therefore be no restraint for him to contract a second marriage whether or not the Talaq pronounced is valid. The petitioner asserts that such an order of injunction should not have been passed unmindful of personal law. The first respondent maintains that the court below is well within its powers to pass such order of injunction ex parte. Reliance is placed on Section 7(1)(d) of the Family Courts Act, 1984 ('the Act' for short) for this purpose. It is the case of the first respondent that the petitioner can move the court below itself for modification of the order of injunction. - 6.We heard Mr T.H.Abdul Azeez, Advocate for the petitioner, Mr Latheesh Sebastian, Advocate for the first respondent and also Mr C.P.Mohammed Nias, Advocate as amicus curiae in the case. OPFC88/2018 -: 6 :- 7.Section 255 of Mahomedan Law (the principles of which have been codified by Sir Dinshaw Fardunji Mulla) is to the following effect: “ 255. Number of wives . A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular.” Thus marrying more wives than one upto a limit of four during the subsistence of the earlier marriages is permissible under the personal law. Even the marriage of the fifth wife when a Mahomedan has already four is not void but merely irregular. An irregular marriage (fasid) may be terminated by either party before or after consummation as per Section 267. The only condition stipulated in Qur'an is that the husband should treat all the four wives equally in OPFC88/2018 -: 7 :- order to act in good faith with God. The petitioner has only contracted one marriage with the first respondent which has allegedly been dissolved by Talaq. Whether the Talaq is valid or not does not affect the right of the petitioner to contract a marriage with another lady. The order of injunction passed in I.A.No.2617/2017 has been passed in blatant disregard of the personal law of the parties. 8.It is true that the court below has jurisdiction to pass an order or injunction in circumstances arising out of a marital relationship under Section 7(1)(d) of the Act. But the power cannot be exercised to restrain a party from re-marriage when the personal law expressly permits. Such order of restraint may perhaps be possible in cases where a husband cannot have more than one wife at a time. Chitra Sengupta v. Dhruba Jyoti Sengupta (AIR 1988 Cal. 98) is one such case where the parties were Hindus. An order of injunction could be granted against re-marriage in an appeal against a OPFC88/2018 -: 8 :- decree for divorce granted by the court below. The parties can be directed to maintain status quo to avert the legal wrangle or complication that might ensue. But the instant case is one where the personal law of the petitioner permits him to have more than one wife at a time. The court below has exercised its jurisdiction under Section 7(1)(d) of the Act to coerce the petitioner to settle the disputes. We would not have normally interfered with an ex parte order of injunction when the parties have other remedy. But we feel that the court below has acted in exercise of its jurisdiction illegally ignoring the personal law governing the parties. We set aside the impugned order in I.A.No.2617/2017 in O.P.No.1524/2017 in the circumstances. The court below is directed to dispose of I.A.No.2617/2017 and O.P.No.1524/2017 on merits expeditiously. - 9.The legal acumen exhibited by Mr C.P.Mohammed Nias, Advocate as amicus curiae especially in Mahomedan Law OPFC88/2018 -: 9 :- cannot but be appreciated. The original petition is allowed. No costs. Sd/- V. CHITAMBARESH, JUDGE Sd/K.P.JYOTHINDRANATH, JUDGE Sha/130318