TWAHA SALMAN v. HAFSATH

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` & ``` ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 13[TH] DAY OF SEPTEMBER 2023 / 22ND BHADRA, 1945 MAT.APPEAL NO. 676 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT OP 1130/2021 OF FAMILY COURT, MALAPPURAM APPELLANT/PETITIONER: ``` ``` TWAHA SALMAN, AGED 37 YEARS S/O POTTANKANDATHIL KUTTIPPA ALIAS UNNEEN, , RESIDING AT POTTANKANDATHIL VEEDU, VELLILA, U.K.PADY, VELLILA P.O, PERINTHALMANNA TALUK ``` ``` BY ADVS. P.P.MUBASHIR ALI ARCHANA MITHRAN O.K. ``` ## **`RESPONDENT/RESPONDENT:`** ``` HAFSATH, D/O PARAPPAN KUTTIYALI, AGED 26 YEARS, RESIDING AT PARAPPAN VEEDU, PUZHAKKATTIRI, PADAPPARAMBU,VATTALLUR P.O, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN – 679322 ``` ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MAT.APPEAL NO. 676 OF 2023 ``` ``` 2 ``` ## **JUDGMENT** ## **Amit Rawal, J.** 1. The present appeal is directed against the judgment and decree dated 16.03.2023 rendered in O.P.No.1130/2021 whereby claim of the appellant/husband for declaration and compensation in respect of the marriage contracted on 22.12.2017 with the respondent, has been dismissed. 2. In the aforementioned petition, appellant/petitioner by referring the date of marriage as 22.12.2017 alleged that after the marriage he was working abroad and as decided between the couple, the appellant would go back to his place of employment after the marriage. At the time of marriage, the petitioner had given a gold chain weighing 6 sovereigns to the respondent as Mehar. During his stay outside the country, he had to meet educational expenses of the respondent for the T.T.I. course. Respondent had some issues with the family and ``` MAT.APPEAL NO. 676 OF 2023 ``` ``` 3 ``` the appellant necessitating the appellant to come back on 16.02.2020. A meeting of two families was proposed to be conducted on 15.03.2020, but the said meeting did not entail into positive result as the respondent by that time had enabled to seek employment in Government Girls School, perinthalmanna. 3. On 09.07.2021, respondent issued a communication by pronouncing Khula for dissolving the marriage with the appellant. The aforementioned Khula was pronounced without holding any mediation or conciliation. For declaration of Khula, respondent – wife preferred O.P.No.607/2021. The said petition after contest by the appellant was allowed by the competent court vide judgment and decree dated 03.01.2022. 4. On the other hand, respondent – wife contested the aforementioned petition and held that appellant created hurdles for preventing the respondent to perform a marriage. Mehar of 5 sovereigns received by the respondent was offered for return but refused to accept the same in proceedings in ``` MAT.APPEAL NO. 676 OF 2023 ``` ``` 4 ``` O.P.No.607/2021. Thus, the declaration claiming the marriage to be still subsisted, in the absence of any challenge to the judgment and decree dated 03.01.2022 in O.P.No.607/2021, would not be maintainable. Respondent on 15.07.2021 performed marriage with Muhammed Thanveer in accordance with Islamic rites and also claimed compensation of Rs.25,00,000/- (Rupees twenty five lakhs only) from the appellant for causing obstruction to her second marriage. 5. Since the parties were at variance trial court framed the following issues: I. Whether the dissolution of marriage of the respondent with the petitioner effected by the respondent on 09.07.2021 by pronouncing Khula is valid. II. Whether the petitioner had suffered any injury due to the wrongful termination of marriage if any by the respondent and what is quantum of compensation if any to be paid. ``` MAT.APPEAL NO. 676 OF 2023 ``` ``` 5 ``` III. Whether the petitioner is entitled to get a decree for return of Mehar ornaments? IV. Whether the respondent is entitled to get any compensation for the alleged mental pain and agony caused by obstruction to her second marriage by petitioner and if so, what is the reasonable amount of compensation. 6. Appellant examined himself as PW1 and placed on record Exts.A1 to A7 whereas respondent examined herself as RW1 and examined RW2 and RW3. 7. Learned counsel appearing on behalf of the appellant submitted that findings of the judgment and decree of the family court is wholly unsustainable and untenable in the eyes of law for, the extra judicial divorce (Khula) has declared by the respondent – wife is not in accordance with the ratio decidendi culled out by the Division Bench of this Court in _**X and Others**_ v. _**Y and Others**_ [2021 (2) KHC 709: AIR 2021 Ker. 124.] wherein it has been held that there is no ``` MAT.APPEAL NO. 676 OF 2023 ``` ``` 6 ``` impediment for the wife for dissolving the marital status ie., unilateral dissolution of marriage by invoking Khula and Talaq and scope of inquiry before the Family Court is limited. No conciliation proceedings as required under the Muslim Law before pronouncement of Khula and declaration was ever held. In support of the contention, paragraph 77 of the judgment has been cited and the husband has the right to recover the Mehar given to the wife at the time of marriage. 7. Trial court overlooked the pleadings and evidence of the appellant to the effect that he never obstructed the second marriage of the respondent as the respondent failed to lead any evidence in support of such assertions for, signature or the consent of the appellant for performing second marriage with somebody was not necessary. 8. The Court below also failed to understand the real facts that the respondent subsequently married another person on 04.07.2022 and therefore the wife is not entitled to claim compensation. No cogent or any specific reasoning have been ``` MAT.APPEAL NO. 676 OF 2023 ``` ``` 7 ``` assigned in rejecting the case of the appellant for non-return of the Mehar for, receipt of the Mehar in the proceedings O.P.No.607/2021 was not denied by the respondent. 9. We have heard the learned counsel for the appellant and appraised the paper book and of the view that there is no force and merit. 10. In the matters of Talaq, Kula, Mubaraat, Talaq-etafwiz, the Family Courts shall entertain such application either by the party or both the parties to declare the marital status of such parties. In the matter of unilateral dissolution of marriage invoking Khula and Talaq, the scope of inquiry before the Family Court is limited. In such proceedings, the court shall only record the fact with regard to Khula or Talaq to declare the marital status of the parties after due notice to other party. If any person wants to contest the effectiveness of Khula or Talaq, it is open for such aggrieved person to contest the same in an appropriate manner known under the law. 11. In the instant case, it is a conceded position on ``` MAT.APPEAL NO. 676 OF 2023 ``` ``` 8 ``` record that the appellant has failed to challenge the judgment and decree dated 03.01.2022 rendered in O.P.No.601/2021. Appellant in the aforementioned proceedings was not prepared to accept the dissolution of the marriage and on the basis of evidence and material on record, Family court granted the declaration taking into consideration the judgment of the Division Bench of this Court ibid, wherein it has been held that until and unless Khula is pronounced the marriage subsists. Concededly, in the present case respondent had already pronounced Khula and sought the declaration which has been granted. In the proceedings, appellant when appeared specifically denied that he was not prepared to receive the Mahler as respondent was still his wife. But in the reexamination, he wanted the Mehar back if the Court found that the dissolution of the marriage was valid. It can’t be stated that respondent had any dominion on Mehar allegedly given by the appellant. Not only this, even appellant made all possible attempts to obstruct the second marriage of the respondent in ``` MAT.APPEAL NO. 676 OF 2023 ``` ``` 9 ``` accordance with the Islamic law and Mahallu Committee and for that Mahallu Committee refused to register the marriage on the ground that the Mehar ornament was not returned. Once the marriage had been dissolved way back on 09.07.2021 and followed by judgment and decree, the petition preferred in 2021 for declaration of subsistence of marriage and compensation in the absence of any challenge would not be maintainable. We do not find any illegality or perversity in the judgment and decree of the Family Court rejecting the claim. Mat. Appeal sans merit, accordingly dismissed. ## **AMIT RAWAL JUDGE** **Sd/-** **C.S. SUDHA JUDGE** nak