NOUFAL v. MUNASSA JABEEN

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 24[TH] DAY OF MAY 2023 / 3RD JYAISHTA, 1945 MAT.APPEAL NO. 72 OF 2023** **AGAINST THE JUDGMENT DATED 13.01.2023 IN O.P.NO.1268 OF 2022 ON THE FILE OF THE FAMILY COURT, MALAPPURAM** ## **APPELLANT/RESPONDENT:** **NOUFAL AGED 48 YEARS, S/O. KOLAKKATTIL KUNHANU (LATE), KOLAKATTIL HOUSE, PARAPPUR AMSOM DESOM, PARAPPUR P.O., KOTTAKKAL, MALAPPURAM DISTRICT, PIN – 676503. BY ADVS. C.M.MOHAMMED IQUABAL P.ABDUL NISHAD RAIHANATH T.H. ISTINAF ABDULLAH MUHAMMED AMEEN** ## **RESPONDENT/PETITIONER:** **MUNASSA JABEEN, AGED 36 YEARS, D/O.MUSLIYAR KALATHIL MUHAMMEDKUTTY, MUSLIYAR KALATHIL VEEDU, KOTTAKKAL AMSOM,PUTHOOR DESOM, PUTHOOR P.O., MALAPPURAM DISTRICT, PIN – 676505. BY ADVS. JAYESH MOHANKUMAR K PUSHPARAJAN KODOTH VANDANA MENON VIMAL VIJAY** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.72 of 2023 ## **JUDGMENT** ## P.G.Ajithkumar, J. The respondent in O.P.No.1268 of 2022 of the Family Court, Malappuram has filed this appeal under Section 19(1) of the Family Courts Act, 1984. He assails the decree dated 13.01.2023 in the said original petition, by which the marriage contracted between the appellant and the respondent on 15.09.2002 was dissolved. 2. The appeal was admitted on 02.02.2023. Operation of the impugned judgment and decree dated 13.01.2023 was stayed for a period of one month as per the order in I.A.No.1 of 2023. The interim order was extended on 13.03.2023 for a further period of one month. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 4. The respondent filed O.P.No.1268 of 2022 before the Family Court, Malappuram to declare that Khula pronounced by her on 15.08.2022 was valid and thereby her marriage with the appellant stood dissolved. She contended that after 3 Mat.Appeal No.72 of 2023 the marriage on 15.09.2002, she along with the appellant were living peacefully and a child was born in that relationship. However, when she got employment under the National Health Mission Scheme in 2015, there arose issues in their matrimonial relationship. The appellant used to torture her physically and mentally. She had left the marital company and that followed mediation, involving members of both the families. There were such mediations in 2017, 2020 and 2022. Following mediations on earlier two occasions, they could live together, but in 2022, no solution could be arrived at. In such circumstances, the respondent pronounced Khula on 15.08.2022. She informed her readiness to return four sovereigns of gold ornaments given to her as Maher. It is in the said circumstances, the respondent filed O.P.No.1268 of 2022. 5. The appellant entered appearance and filed a counter statement. He refuted the contentions and allegations in the original petition. He attributed fault on the part of the respondent. It is contended that the respondent has psychiatric issues and chemical disorder. He always has been 4 Mat.Appeal No.72 of 2023 taking care of her. He further contended that there was no valid pronouncement of Khula. 6. The Family Court, after recording sworn statements of both the appellant and the respondent, found that there was prima facie grounds for accepting the Khula pronounced by the respondent as valid. Accordingly, the Family Court allowed the original petition accepting the Khula pronounced by the respondent on 15.08.2022 as valid and passed a decree dissolving the marriage. 7. The learned counsel appearing for the appellant would submit that the Family Court did not comply with the directions in **Asbi K.N. v. Hashim M.U. [2021 (6) KHC 159]** in allowing O.P.No.1268 of 2022. The learned counsel would point out that the Family Court did not give opportunity to the appellant for presenting his case. Since the matter was considered in a haphazard manner, there was no consideration as to whether the process of Khula was validly gone through and the requirements of a valid Khula were met. No mediation or conciliation was taken place either before pronouncement of Khula or after filing of O.P.No.1268 of 2022. the learned 5 Mat.Appeal No.72 of 2023 counsel, in the above circumstances, would submit that the impugned decree is liable to be set aside. 8. As against the said submissions, the learned counsel appearing for the respondent would submit that what was required is only a summary enquiry and satisfaction by the Family Court that the wife pronounced Khula. From the impugned judgment itself it is evident that such a procedure was followed by the Family Court and as such, the learned counsel would submit, there is no reason to interfere with the impugned judgment and decree. 9. In **X and others v. Y and others [2021 (2) KLT 709]** this Court while holding that the Family Court can endorse an extra-judicial divorce of Khula and declare that the marriage has been dissolved, it was made clear that there shall be an enquiry of limited scope in order to ascertain whether there was such a pronouncement of Khula. 10. In **Asbi K.N.** (supra), this Court explained the procedure to be followed while considering a petition filed by the wife claiming that Khula was pronounced. It was held that the Family Court has to ascertain whether a valid 6 Mat.Appeal No.72 of 2023 pronouncement/declaration of Khula was made. This Court further cautioned that before declaring the Khula as valid, it should be ensured that it was preceded by an effective attempt of conciliation. It is further held that the court should ascertain whether there was an offer by the wife to return the dower. In order to ascertain those aspects, the court need not go for a roving enquiry, but can ascertain even from the Khulanama or written communications, if any, in that regard. Following guidelines were formulated by this Court in that ## regard:- - “(i) On receipt of the petition, the Family Court shall issue notice to the respondent. - (ii) After service of summons or appearance of the respondent, as the case may be, the Family Court shall formally record the statement of both parties. The parties shall also be directed to produce talaq nama/khula nama (if pronouncement/declaration is in writing)/mubaarat agreement. (iii) The Family Court shall thereafter on perusal of the recitals in talaq nama/khula nama/ communication of talaq, khula or talaq-e-tafweez (if available) and the statement of the parties, ascertain whether there was valid pronouncement of talaq/khula/talaq-e-tafweez. In the case of mubaarat, the Family Court shall ascertain whether the parties have executed and signed mubaarat 7 Mat.Appeal No.72 of 2023 ## agreement. (iv) On prima facie satisfaction that there was valid pronouncement of talaq, khula, talaq-e-tafweez, as the case may be, or valid execution of mubaarat agreement, the Family Court shall proceed to pass order endorsing the extrajudicial divorce and declaring the status of the parties without any further enquiry. (v) The enquiry to be conducted by the Family Court shall be summary in nature treating it as an uncontested matter. (vi) The Family Court shall dispose of the petition within one month of the appearance of the respondent. The period can be extended for valid reasons. (vii) If any of the parties is unable to appear at the Court personally, the Family Court shall conduct enquiry using video conferencing facility.” 11. The Family Court had recorded sworn statements of the appellant and the respondent. On the basis of those statements, the Family Court entered a finding that there was prima facie evidence to find that the respondent had pronounced Khula in accordance with the provisions of the Shariat Law. As pointed out above in order for declaring a Khula as valid, the court should be satisfied that there was such pronouncement, a conciliation process had preceded and the wife had offered to return the dower. The claims of the 8 Mat.Appeal No.72 of 2023 respondent with respect to those aspects were refuted by the appellant. There is nothing on record to show that there was an attempt for conciliation between the parties before the respondent pronouncing Khula. It is averred in the petition that the respondent was prepared to return the dower, but the evidence does not show that she had offered the appellant that she was prepared to return the dower. In order for the pronouncement of Khula to be a valid one, the wife should have obtained Khula from Mufti under the Muslim Personal Law as observed by the Apex Court in paragraph No.14 of the decision in **Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and another [(2014) 10 SCC 736].** 12. Even if it is accepted that the respondent pronounced such a Khula, the court should have satisfied itself that the other parameters; such as, conciliation and offer of dower were complied with. Here, the Family Court did not consider any such aspects. It is true that the Family Court is not expected to ascertain whether Khula was valid and pronounced for sufficient reasons. But the Family Court should ensure that there was pronouncement of Khula, which is 9 Mat.Appeal No.72 of 2023 preceded by a proper conciliation and offer for return of dower. Without adverting to any such aspects, the Family Court rendered the impugned judgment and declared the Khula pronounced on 15.08.2022 as valid. We are of the view that the said judgment and decree are not valid for the aforementioned reasons and liable to be set aside. Resultantly, the appeal is allowed. The judgment and decree dated 13.01.2023 are set aside. O.P.No.1268 of 2022 is remitted to the Family Court, Malappuram for fresh disposal. **Sd/-** **ANIL K.NARENDRAN, JUDGE** **Sd/P.G.AJITHKUMAR, JUDGE** _dkr_