P. U. Mohammed Basheer v. N. P. Sulaikha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941** **Mat.Appeal.No.214 of 2006** **AGAINST THE ORDER/JUDGMENT IN OP 297/2004 of FAMILY COURT,ERNAKULAM DATED 12-07-2006** ## **APPELLANT/RESPONDENT:** **P.U.MOHAMMED BASHEER, S/O LATE P.B.UMMAR, RESIDING AT YASEEN, 50/762-C, KOSSERY LANE, EDAPALLY NORTH VILLAGE, KANAYANNUR TALUK.** **BY ADVS. SRI.P.A.AHAMMED SRI.THOUFEEK AHAMED** ## **RESPONDENT/PETITIONER:** **N.P.SULAIKHA D/O V.K.MAMMY, RESIDING AT 37/260, SHERON VIHAR, POWER HOUSE LINK ROAD, PALARIVATTOM, KOCHI-21.** ## **BY N.P.SULAIKHA (PARTY IN PERSON)** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.06.2019, THE COURT ON 08.07.2019 DELIVERED THE FOLLOWING:** _Mat.Appeal No.214/2006_ 2 ## **JUDGMENT** Ashok Menon, J. The appellant is the husband of the original petitioner, who filed O.P.No.297/2004 before the Family Court, Ernakulam and obtained a decree of declaration of marital status. The declaration sought was that the petitioner therein is the legally wedded wife of the respondent/appellant and that the marriage between them is still subsisting. The parties are hereinafter referred to as per the status in the Original Petition. 2. The respondent is aggrieved by the aforesaid impugned order dated 12.07.2006 and hence is in appeal before us. 3. The facts can be encapsulated as thus: The petitioner got married to the respondent according to Islamic rites on 25.01.1976 and begot three children in the wedlock. Their marital relationship ran into rough weather and as a result of which, the respondent allegedly ignored the petitioner and their children and got involved in an illicit relationship with a woman _Mat.Appeal No.214/2006_ 3 named Niza. The petitioner would claim that the marriage between the petitioner and the respondent still subsists and there was no legal divorce or _talaq_ . 4. _Per contra,_ the respondent/appellant contends that he had pronounced _talaq_ in accordance with the Islamic rites after exploring all attempts to reconcile the discordant relationship between him and the petitioner. It is only after realising that the petitioner would not be mend her ways did he decide to pronounce _talaq_ . It is also stated that he had communicated the _talaq_ pronounced on 17.10.1988 to the petitioner by registered post with acknowledgment due. Ext.B2 is the photocopy of the _talaq,_ which was sent in an inland letter. Ext.B3 is the photocopy of the acknowledgment card indicating that the petitioner had accepted the same on 31.10.1988 and it bears her signature. The act regarding pronouncement of _talaq_ was also intimated to the concerned Jama-ath of the petitioner as well as the respondent and also to the father of the petitioner as is evident from the copy of the acknowledgments marked as Exts.B4 to B6. _Mat.Appeal No.214/2006_ 4 5. The respondent had remarried Hirunissa @ Niza as is evident from Ext.B9 marriage certificate dated 18.02.1996 issued from the Jama-ath. However, the petitioner and the members of her family did not spare any attempt to harass the respondent and Ext.B7 is the copy of the judgment in C.C.No.53/1991 indicating that the respondent and some others were implicated in a falsely foisted criminal case by the petitioner and her mother, which ended in acquittal. 6. The respondent retired from the police service as a Deputy Superintendent. Fearing that the petitioner may not be able to lay her hands on his retiral benefits and other properties of the respondent, she filed a petition before the Judicial First Class Magistrate, Aluva as M.C.No.20/1999, the copy of the petition is Ext.B1, admitting that she is the divorced wife of the respondent and claiming fair provision under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. When the respondent contested that petition, the petitioner realised that she would be better off denying the factum of divorce _Mat.Appeal No.214/2006_ 5 altogether, and under those circumstances, M.C.No.20/1999 was dismissed as not maintainable as per Ext.A1 order. With the intention of usurping the retiral benefits of the respondent, the petitioner made a representation before the District Superintendent of Police, Wayanad as Ext.A5 on 05.08.2000 claiming that she continues to be wife of the respondent and that she is entitled to all benefits as a legally wedded wife. She received Ext.A9 intimation from Dy.S.P. stating that Ext.A5 representation was forwarded to the D.G.P. and thereafter she received Ext.A9 reply dated 27.01.2004 from the D.G.P. stating that to lay her claim as a wife of the respondent, she had to get a declaration regarding her status from a court of competent jurisdiction. Consequent to which, the present Original Petition was filed before the Family Court in 2004. 7. In support of the fact that petitioner continues to be the legally wedded wife of the respondent, she had produced Ext.A2 ration card issued during 1996, which mentions the respondent as the head _Mat.Appeal No.214/2006_ 6 of the family. Ext.A3 is letter received from Bank of Allahabad in the name of the respondent on 28.07.1992 calling upon him to clear the outstanding loan which he had incurred from the bank in 1989. Ext.A4 is an invoice for purchase of a scooter obtained in the name of the respondent on 18.10.1994 at his address at Palarivatom, where the petitioner and children are residing. The petitioner also obtained a certificate of marriage as Ext.A6 from the Secretary, Manathala Juma-ath Committee certifying that the marriage between the petitioner and the respondent was solemnized on 25.01.1976 and that the said marriage is still existing. Ext.A7 is a similar certificate issued on 08.08.1998 signed by the President of the Manathala Jama-ath Committee, Chavakkad. The President of the Committee is none other than the father of the petitioner Sri.V.K.Mammi. Ext.A10 is a request letter allegedly sent by the respondent to the City Rationing Officer on 15.01.1990 requesting for a change of the Ration Shop following the shifting of his residence. Exts.A11 to A17 are all photographs of the petitioner, _Mat.Appeal No.214/2006_ 7 respondent and their children taken on different occasions and Ext.A18 is alleged to be a photograph of RW5, the brother-in-law of the respondent, who had allegedly come to the house of the petitioner at Palarivattom along with his wife in their newly purchased car. 8. On the basis of the oral testimony of the petitioner examined as PW1 and the documents referred to above, the petitioner states that she continues to be the legally wedded wife of the respondent and is therefore entitled to a declaration as prayed for. 9. The respondent himself was examined as RW1. Two witnesses to Ext.B2 _talaq_ were examined as RW2 and RW3. The President of Thottathumpady Jama-ath to which the respondent belongs was examined as RW4 and he testifies that he had received the copy of the _talaq_ communicated to the petitioner by the respondent. RW5 is the brother-in-law of the respondent, who had mediated in reconciling the dispute between the petitioner and the respondent. _Mat.Appeal No.214/2006_ 8 10. The respondent would contend that the petitioner constantly harassed the present wife Hirunissa and she was forced to file O.S.No.529/2003, the copy of the plaint of which is Ext.B11. Ext.B12 application was also filed restraining the petitioner from entering the house and harassing her. In support of the allegation in the plaint, the respondent had filed Ext.B13 affidavit on 07.04.2003 stating that the petitioner was divorced by him and that the plaintiff is his present wife. Ext.P14 is the injunction order obtained on Ext.B12 application and Ext.B15 is the judgment in the O.S. injuncting the petitioner and her children from entering the property where the respondent's present wife and his son are residing. The respondent contends that he had informed his Department about the marriage and the present wife and Ext.B16 is the letter addressed to Accountant General requesting for a revision of his family details. It is stated that the petitioner continued with her harassment against the respondent by filing Ext.B17 petition before the Chief Minister on 29.6.1988. It is _Mat.Appeal No.214/2006_ 9 consequent to Ext.B18 that the respondent attempted to reconcile his difference with the petitioner and after having failed in doing so, he was left with no option but to pronounce _talaq_ on 17.10.1988, and communicate it as per Ext.B2. It is also contended by the respondent that the petitioner was having relationship with other men, particularly, with a person named Bombay Salim, who visited their house. In order to prove that, he had produced Ext.B20 photograph of that person. 11. On appreciation of the evidence placed before the Family Court, the learned Judge came to the conclusion that the respondent has failed to establish that he had pronounced _talaq_ severing the relationship with the petitioner and that their relationship continued on to the 1990's as is evident from the documentary evidence and the admission of the petitioner in Ext.B1 petition filed before the Magistrate Court, is only an erroneous submission of being a divorced wife and that is the reason why the petition was ultimately dismissed. The learned Family _Mat.Appeal No.214/2006_ 10 Court Judge also found fault with the respondent for not having produced the originals of the acknowledgment cards and instead relying on the photocopies as Exts.B3 to B6. Hence, the learned Judge found that the respondent has not succeeded in proving the pronouncement of _talaq_ as per Ext.B2 was effectively communicated to the petitioner wife. It is also found that there was no sufficient evidence regarding the reconciliation prior to the pronouncement which by itself would invalidate the _talaq_ . The learned Judge had relied on the decision in _**Shamim Ara v. State of U.P., AIR 2002 SC 3551 : 2002 (3) KLT 537**_ , wherein the Honourable Supreme Court has held that “the correct law of _talaq_ as ordained in the Holy Quaran is that _talaq_ must be for reasonable cause and must be preceded by attempts at reconciling between the husband and wife by two arbitrators one from the wife's family and other from husband's family and if attempts failed _talaq_ may be effected.” 12. The learned Judge also did not agree with the contention of the respondent that the petition is time _Mat.Appeal No.214/2006_ 11 barred by limitation for the reason that the bar under Article 58 of the Limitation Act cannot be imported to the case in hand for the reason that the petitioner has succeeded in establishing that the respondent continued with his relationship even subsequent to the alleged pronouncement of _talaq_ on 17.10.1988 and that she was forced to file a petition only consequent to the receipt of Ext.A9 communication on 27.01.2004 from the D.G.P. asking her to approach a civil court for declaration of marital status with the respondent. 13. Heard the learned Counsel for the appellant and the original petitioner appearing in person. Records perused. 14. The prayer in the petition is one seeking a declaration that the petitioner continues to be the legally wedded wife of the respondent and that the marriage between them is still subsisting. 15. The learned Family Court Judge found that Ext.B2 _talaq nama_ allegedly communicated to the petitioner by the respondent on 17.10.1988 has not been proved to be communicated to the petitioner for the _Mat.Appeal No.214/2006_ 12 reason that he could not produce the originals of the acknowledgment cards. Exts.B3 to B6 are the photocopies of the acknowledgment cards. The signature of the petitioner is very clearly seen in Ext.B3 photocopy and the signature of the petitioner's father is also seen in Ext.B4 copy of the acknowledgment card. RW4 the Secretary of the Thottathumpady Muslim Jamaath, who is examined as RW4 admits his signature in Ext.B5 copy of acknowledgment card. Ext.B6 is the copy of acknowledgment card, which is signed by the Secretary of the Mannathala Juma-ath Committee, Chavakkad. Ext.B4 signed by the father of the petitioner has also issued Ext.A7 certificate as President of the Mannathala Juma-ath Committee. It is true that the respondent was not able to produce the originals of acknowledgment cards. He would testify that he had entrusted the documents in original to his Advocate in connection with conducting of M.C.No.20/1999 before the Judicial First Class Magistrate, Aluva and that the documents somehow got misplaced or lost. But the Advocate had the _Mat.Appeal No.214/2006_ 13 photocopies of the documents, which were produced for the purpose of this petition. The Advocate is examined as RW6 in support of this averment by the respondent. When an explanation is forthcoming regarding the nonavailability of the primary evidence, secondary evidence could be accepted with explanations under Sections 63 and 65(c) of the Evidence Act, and according to us the explanation offered by the respondent as also his Advocate examined as RW6, would satisfy the reasons for producing photocopies of the acknowledgment cards. The rejection of those documents by the Family Court Judge does not appear to be proper. 16. Admission is the best evidence to prove a fact. The respondent has produced Ext.B1 copy of the petition filed by the petitioner before the Judicial First Class Magistrate, Aluva under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act declaring herself to be a divorced wife and claiming the fair provision under Section 3 of the said Act. In view of the admission made by the petitioner about her marital status in Ext.B1, there is no need for the respondent _Mat.Appeal No.214/2006_ 14 to prove the declaration of _talaq_ . The petitioner is an educated lady, aware of her rights and capable of defending herself. The two witnesses, who were present at the time of pronouncement of _talaq_ as per Ext.B2, were examined before the court as RW2 and RW3. The President of the Thottathumpady Jama-ath to which the respondent belongs is also examined as RW4 and he has also issued Ext.B8 certificate of divorce in consequent to the pronouncement of the _talaq_ . The father of the petitioner who has signed Ext.B4 acknowledgment, was not examined before the Court to specifically deny the fact of having received the _Talaq nama_ . Exts.A6 and A7 certificates from the Mannathala Jama-ath, Chavakkad cannot be given much importance, because the father of the petitioner is admittedly the President of the Jamaath and in view of the fact that he did not come before the Court to testify against the pronouncement of _talaq_ . Ext.A2 ration card alleged to have issued in 1996 with respondent as head of the family has no consequence, because the Ration Cards are issued in a routine manner and it is also pertinent to note that _Mat.Appeal No.214/2006_ 15 Ext.A2 does not bear the signature of the respondent as the head of the family. Exts.A3 and A4 letters from the bank and the invoice from the scooter dealer also cannot be given much importance because the residence in which the petitioner and her children continued to reside also belonged to the respondent and it is his address on which he used to get all communications till the couple fell apart. The fact that those letters were communicated to the respondent in the address, where the petitioner was residing, is too far fetched consequence to conclude that the respondent continued residing with the petitioner even consequent to Ext.B2 and therefore there is no _talaq_ . 17. Under Mohammedan Law, there is absolute right to the husband to pronounce _talaq_ . The only requirement is that he is satisfied about the indocility of his wife. A _Talaq_ may be effected orally or by a written document called a _Talaq nama_ . A _Talaq nama_ may only be the record of the fact of an oral _Talaq_ ; or it may be the deed by which the divorce is effected. S.313 in Mulla's Mohammedan Law provides that in the absence of _Mat.Appeal No.214/2006_ 16 words showing a different intention, a divorce in writing operates as an irrevocable divorce that is, _talaq-i-bain_ , and takes effect immediately on its execution. Deed of Divorce in writing constitutes a valid divorce ( _**Rasul Bakhst v. Bholon and others, AIR 1932 Lah.498**_ ). Under Hanafi Law, divorce of wife by a written document is irrevocable _(_ _**Hayat Khatun v. Abdullah Khan, AIR 1937 Lah.270)**_ . As most Sunnis are Hanafis the presumption is that a Sunni is governed by Hanafi Law. It is thus clear _Talaq nama_ may be only the record of the fact of an oral _Talaq_ or it may be the deed by which the divorce is effected. (See : Sections 310(2) & 312, Mulla's Mohammedan Law). Thus it is clear that a _Talaq_ can be revoked by conduct before it becomes irrevocable. The _Talaq_ is, however, complete on the expiration of the period of _iddat_ . Until the _talaq_ becomes irrevocable, the husband has the option to revoke it which may be done either expressly, or impliedly as by resuming sexual intercourse. Every mode of _Talaq_ , when is complete, it becomes irrevocable. The question that we have to consider is whether in case of _Mat.Appeal No.214/2006_ 17 every irrevocable _Talaq_ , irrespective of its mode, for remarriage with the same husband the wife requires to observe the _"Halala"_ . 18. In the case in hand, it is let in evidence that when the respondent gone to Mumbai, the petitioner left her home to Thiruvanthapuram under the guise of completing her Graduation in a tutorial situated there, leaving behind her three young children. The persuasion of the respondent to return home was not paid any heed to, is the allegation raised by the respondent. The respondent has also pointed out that in Ext.B17 complaint filed before the Chief Minister by the petitioner, way back in 1988, she had raised an allegation that the respondent and his men had snatched away a gold chain weighing 8 sovereigns from her possession. But in the cross-examination, PW1 admits that the weight of the gold chain was only 1½ sovereigns and is still in her possession. Her affinity towards Bombay Salim, who is shown in Ext.B20 photograph has been spoken to by RW5, who says that she had even expressed her desire to get married to Bombay Salim after abandoning her children in a hostel. _Mat.Appeal No.214/2006_ 18 19. The evidence adduced by the witnesses would indicate that pronouncement of _talaq_ by RW1 was not an abrupt decision taken at the heat of passion, but a well thought over decision, which was conveyed to the petitioner and despite having received the communication pertaining to the dissolution of her marriage, she did not raise any objection about the _talaq_ or its validity till 2003, when she wanted to harass the legally wedded second wife of the respondent. In the affidavit filed by the respondent in the civil suit filed by his present wife, he has reiterated that the _talaq_ was effected in 1988. The delay in the challenging the validity of _talaq_ is therefore, with ulterior motives. 20. The respondent has raised an issue regarding the petition being barred by limitation. It is contended that the suit for declaration is governed by Article 58 of the Limitation Act, wherein the period of limitation prescribed is only 3 years. The interpretation given by the learned Family Court Judge regarding the right to sue accruing in the instant case _Mat.Appeal No.214/2006_ 19 does not appear to be acceptable to us. In the petition it is stated that the cause of action arose in March, 1996 and the Original Petition is filed only in 2004, beyond the period of limitation. In Ext.A5 representation made by the petitioner before the Department on 05.08.2000 in which it is very clearly stated that her husband is in a relationship with a concubine, who is going to snatch away all the retiral benefits due to her husband from the Department and that her husband has also produced the photograph of the concubine for the purpose of pensionary benefits as his legally wedded wife. Even if Ext.P5 is taken as the cause of action for declaration, the present Original Petition filed in 2004 is barred by limitation. The finding of the learned Family Court Judge that the suit is not barred by limitation is therefore not sustainable. 21. Having bestowed our anxious consideration to all the facts and circumstances in this case, we are of the definite opinion that the petitioner has been divorced by the respondent and she no longer continues _Mat.Appeal No.214/2006_ 20 to be legally wedded wife of the respondent. The petitioner is not therefore entitled to any declaration as payed for. The impugned order of the Family Court dated 12.07.2006 is not sustainable for the reasons stated above. In the result, the Mat.Appeal is allowed and the impugned Order dated 12.07.2006 in O.P.No.297/2004 on the files of the Family Court Ernakulam, is hereby set aside and the petition is dismissed. No order as to costs. ## **Sd/-** ## **V.CHITAMBARESH** ## **JUDGE** ## **Sd/-** ## **ASHOK MENON** _dkr_ **JUDGE** _Mat.Appeal No.214/2006_ 21 ## **APPENDIX** ## **APPELLANT'S ANNEXURES:** **ANNEXURE A1 COPY OF THE DISCHARGE SUMMARY FROM THE DEPARTMENT OF CARDIOVASCULAR SCIENCES, MEDICAL TRUST HOSPITAL. ANNEXURE A2 COPY OF THE REPORT ISSUED FROM RENAI MEDICITY HOSPITAL DATED 25.09.2014.**