Mumthas S. v. Nizar M.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 19TH DAY OF JANUARY 2017/29TH POUSHA, 1938** **OP (FC).No. 108 of 2016 (R) ----------------------------** ## **AGAINST THE ORDER IN OP 1054/2014 of FAMILY COURT, NEDUMANGAD** **PETITIONER:** **-----------** **MUMTHAS.S., AGED 42, D/O.SAFIYA BEEVI, M.A.MANZIL, PUTHUKULANGARA P.O., NEAR NEDUNEELI PALAM, UZHAMALAKKAL VILLAGE, NEDUMANGADU TALUK, PIN-695541.** **BY ADVS.SRI.P.G.SUDHEESH SRI.DDIPU** **RESPONDENT:** **-----------** **NIZAR M.,** **AGED 50 YEARS, S/O.MUHAMMED HANEEFA, KUNNIL VEEDU, THENNOOR P.O., THENNUR VILLAGE, NEDUMANGAD TALUK.** **R1 BY ADV. SRI.SHABU SREEDHARAN R1 BY ADV. SRI.S.VIJAYAN R1 BY ADV. SRI.P.R.VIBHU R1 BY ADV. SRI.JOLLY GEORGE R1 BY ADV. SRI.JOHNY ANDREWS R1 BY ADV. SMT.RESHMA ABDUL RASHEED R1 BY ADV. SRI.K.V.PREMSANKAR R1 BY ADV. SRI. K. SHAHIDA** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19-012017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP (FC).No. 108 of 2016 (R)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 TRUE COPY OF THE AWARD PASSED BY TALUK LEGAL SERVICE COMMITTEE.** **EXT.P2 TRUE COPY OF OP.NO.1054/2014.** **EXT.P3 TRUE COPY OF THE SETTLEMENT PASSED BY NEDUMANGADU TALUK LEGAL SERVICE COMMITTEE.** **EXT.P4 TRUE COPY OF THE ABOVE IA.NO.1322/15** **EXT.P5 TRUE COPY OF THE ORDER IN EXT.P4.** ## **/TRUE COPY/** **P.S TO JUDGE** **cl** ## **A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.** ....................................... O.P.(FC).No.108 of 2016 ........................................ Dated this the 19[th] day of January, 2017. ## **JUDGMENT** ## **K. Ramakrishnan, J:** This is an application filed by the petitioner challenging Ext.P3 award as well as Ext.P5 order under Article 227 of the Constitution of India. 2. It is alleged in the petition that the petitioner is the legally wedded wife of the respondent and the marriage was solemnized on 31.05.1994 and a girl child was born to them in that wedlock. Since the respondent did not maintain the petitioner and the child, she filed OP.No.1054/2014 as Ext.P2 for dissolution of marriage under the provisions of the Dissolution of Muslim Marriage Act before the Family Court, Nedumangad. Even prior to that, there was a case filed as MC.No.85/2011 before the Judicial First Class Magistrate Court-I, Nedumangad under the provisions of the Protection of Woman from Domestic Violence Act and that was referred to Adalath and Ext.P1 award was passed whereby the respondent herein had agreed to pay monthly maintenance of Rs.2,000/- to the petitioner and Rs.1,500/- to the child and the amount will be sent by money order. On that basis, MC.No.85/2011 was closed. 3. During the pendency of Ext.P2 proceedings, the matter has been again referred to Adalath and in the Adalath, matter was settled as per Ext.P3 whereby the respondent has agreed to 2 O.P.(FC).No.108 of 2016 pronounce talaq and also agreed to pay an amount of Rs.One lakh in full and final settlement of the amount payable under section 3 of the Muslim Women Protection on Divorce Act. On the basis of Ext.P3 award of the Adalath, the petition filed by the petitioner was closed. Since the respondent did not comply with the conditions, the petitioner filed Ext.P4 application as IA.No.1322/2015 in OP.No.1054/2014 to reopen the case as the terms of settlement as per Ext.P3 award has not been complied with by reviewing the order closing of the original petition on the basis of the Adalath award. But that was dismissed by the court below by Ext.P5 order stating that the court has no power to review the award and if at all the parties are aggrieved, they will have to challenge the same by filing a writ petition relying on certain decisions of this Court on this aspect namely _**Moni Mathai**_ _**& others v. The Federal Bank and another**_ (2003 (1) KLT 406), _**Thomas P.T v. Thomas Job**_ (2005 (3) KLT 1042) and _**Kil Kotagiri T and C Estates Co. Ltd v. Income Tax Appellate**_ _**Tribunal**_ (1998 (2) KLT 271). Aggrieved by the same, the present petition has been filed to set aside Ext.P3 award and Ext.P5 order. 4. During the pendency of the proceedings, this Court had issued a direction to pay an amount of Rs. One lakh towards the arrears of maintenance which was due in another proceedings and in that, the respondent had agreed to transfer 75 cents of land in favour of the minor child in lieu of the maintenance payable within O.P.(FC).No.108 of 2016 3 two days and this was recorded as per order dated 19.12.2016. Again when it came up on 5.1.2017, this Court has passed the following order: _“Going by the interim order dated 19.12.2016, we are of the prima facie view that this is a case where the respondent had wilfully disobeyed the direction issued by this Court. Accordingly, we are inclined to take suo motu contempt against the respondent. The respondent shall show cause within a period of two weeks from today as to why contempt proceedings should not be initiated for noncompliance of the directions issued on 19.12.2016.”_ The grievance of the petitioner was that even those undertakings were not complied with by the respondent. 5. Heard Sri.Peroorkada G. Sudeesh, learned counsel appearing for the petitioner and Sri. Shabu S. Sreedharan, learned counsel appearing for the respondent. 6. Learned counsel appearing for the petitioner submitted that Ext.P3 is an unworkable award as it cannot be executed. No person can compel any person to pronounce talaq. Only if talaq is pronounced by the respondent, she will be getting the benefit of the payment payable under Section 3 of the Muslim Women Protection on Divorce Act. Since the respondent has not compiled with the direction, he had no other option except to come to this Court to set aside that award as it is an inexecutable award. 7. On the other hand, learned counsel appearing for the 4 O.P.(FC).No.108 of 2016 respondent submitted that he is prepared to maintain the child and he is prepared to pay the amount but he is not having liquid cash and that was the reason why he is not able to comply with the direction. 8. The fact that Ext.P3 award has been passed is not in dispute. When an award has been passed, the Adalath members will have to consider as to whether the terms of agreement entered into between the parties is an executable one. Once it has become an inexecutable one, then award cannot be treated as award in the eye of law. It becomes nonest as parties may not get the benefit of the award which was not intended by the provisions of the Legal Services Authority Act. Once an award has been passed, the same can be set aside only by filing a writ petition on the ground of fraud and the civil court cannot vary the terms of the award. This was so held in the decisions reported in _**Thomas Job v. Thomas**_ (2003 (3) KLT 936) by this Court and _**State of Punjab v. Jalouar Singh**_ (2008 (2) KLT 236) by the Apex Court. 9. Since the respondent has not complied with the conditions and he has no intention to comply with the same, that shows that he wants to avoid a decree being passed by the court and with that fraudulent intention, agreed to pronounce talaq and made the other party to agree for a settlement in the Adalath promising to pronounce talaq and also by paying a lump sum amount of Rs. One lakh which he is liable to pay in the event of pronouncing O.P.(FC).No.108 of 2016 5 talaq under section 3 of the above said Act. That shows that it was with the fraudulent intention not to comply with the condition that he had made the other party to believe that he will comply with the same and obtained an award. Further the award cannot be executable because no one can compel a person to pronounce talaq. Only if talaq is pronounced, the petitioner is entitled to get the benefit of section 3 of the above said Act as well. Under such circumstances, this Court is of the view that the award passed is perpetuated by fraud of a malafide intention on the part of the respondent somehow to escape from a decree of dissolution being passed under the proceedings that was initiated by the wife evidenced by Ext.P2. So this Court feels that the award passed by the Adalath namely Ext.P3 has to be set aside. Consequently, Ext.P2 O.P.No.1054/2014 of Family Court, Nedumangad has to be restored to file. So this view is strengthened by the decision of this Court reported in _**Krishnakumari v. Venugopal**_ (2005 (2) KLT 185). So the petition is allowed and disposed of as follows: Ext.P3 award dated 11.5.2013 in the Adalath held on that day in OP.No.1054/2014 is set aside and consequently Ext.P5 order is also set aside and O.P.No.1054/2014 of Family Court, Nedumangad is restored to fie. Since the direction given by this Court to execute a sale deed is in respect of some other matter pending between the parties and not connected to this proceedings, this Court feels that there is no further order need be passed by 6 O.P.(FC).No.108 of 2016 initiating proceedings against the respondent under the Contempt of Courts Act. So further proceedings on the basis of the direction issued is hereby closed. The petitioner is at liberty to proceed against the respondent for realization of the amount which has been passed in the proceedings pending between the parties namely MC.No.457/2015 before the Family Court, Nedumangad in accordance with law. Parties are directed to appear before the Family Court, Nedumangad on 22.2.2017. Considering the fact that the case is of the year 2014, the court below is directed to expedite the disposal of original petition as expeditiously as possible, at any rate, within three months from 22.2.2017, on the date on which the parties are directed to appear before that court. Registry is directed to communicate a copy of this judgment to the court below at the earliest. ## **Sd/-** ## **A.M. SHAFFIQUE, JUDGE.** ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl