Kerala High Court
Abdulla vs Sajida on 16 January, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
2025:KER:3619
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946
MAT.APPEAL NO. 792 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 18.06.2024 IN OP NO.836 OF
2023 OF FAMILY COURT, MALAPPURAM
APPELLANT/RESPONDENT:
ABDULLA, AGED 42 YEARS, VELLARAMPARA (H),
KERALA ESTATE AMSOM, ARIMANAL DESOM AND
POST, PARASSERI, KALIKAV, NILAMBUR TALUK,
MALAPPURAM DISTRICT,, PIN - 676525
BY ADVS.
K.M.FIROZ
M.SHAJNA
RESPONDENT/PETITIONER:
SAJIDA, AGED 36 YEARS, D/O. HAMSA KUTTY,
MADATHIL (H), KERALA ESTATE AMSOM,
ARIMANAL DESOM AND POST, NILAMBUR
TALUK, MALAPPURAM DISTRICT,,
PIN - 676525
BY ADV - SRI.A.G.SUNIL KUMAR
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
16.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:3619
Mat Appeal 792/24
2
JUDGMENT
Devan Ramachandran, J.
This Appeal assails the judgment of the learned Family Court, Malappuram, in O.P.No.836/2023.
2. The aforementioned Original Petition was filed by the respondent herein, seeking judicial validation of 'Khula' pronounced by her against the appellant on 27.06.2023.
3. It is the specific contention of the appellant, as argued by his learned counsel Sri.K.M.Firoz, that the declaration of the learned Family Court in affirmation of the 'Khula' is improper and illegal because, it was not preceded by any mediation, much less a meaningful one. He argued that, even going by the evidence on record, and the deposition of the parties, it would become manifestly clear and luculent that his client had sought a reunion, which the respondent wife refused to accede to, though she had given an assurance before the mediators to such effect. He pointed out that it is this mediation 2025:KER:3619 Mat Appeal 792/24 3 which has now been construed by the learned Family Court to be the one satisfying the criteria for validation of the 'Khula'; and thus reiterated that this is improper, the impugned order being thus forensically infirm.
4. However, Sri.A.G. Sunil Kumar - learned counsel for the respondent wife, argued that his client had been driven to the limits of her patience and endurance by the appellant, before she had pronounced 'Khula' against him through Ext.A2, dated 27.06.2023. He added that his client has specifically averred in the Original Petition and had supported it by her testimony as PW1, that the meditations prior to the 'Khula' did not bear result and therefore, that she was fully justified in having issued Ext.A2. He contended that this is more so, when the deposition of PW1 establishes that the appellant did not care to cross examine her, though given such opportunity; and hence that his present argument, that he was not given an opportunity to present himself as a witness, is only an afterthought and contrary to the truth. He 2025:KER:3619 Mat Appeal 792/24 4 thus prayed that this Appeal be dismissed.
5. We have examined the evidence on record, which consists of the testimony of the respondent as PW1; and Exts.A1 to A5 documents produced by her.
6. We must say upfront that we find force in the submissions of Sri.A.G.Sunil Kumar that the appellant had declined or refused to cross-examine the respondent, though offered such an opportunity. This is because, the Court endorsement on the deposition of PW1 is 'no cross'; and even going by the pleadings on record and the submissions of Sri.K.M.Firoz, the appellant does not have a case that he was refused an opportunity to cross-examine the respondent. In fact, in Ground No.P of the Memorandum of this Appeal, it is the specific assertion of the appellant that he could not 'effectively cross- examine' the respondent, or adduce evidence. We are afraid that we cannot find favour with this at all, when he has accepted the Court endorsement on the testimony of PW1, that he had refused 2025:KER:3619 Mat Appeal 792/24 5 to cross-examine her and had not taken the opportunity of doing so, in spite of it being so offered.
7. Normally, so having found, it would not be requsite to go into the merits of any other contention, but solely for the purpose of record, we notice that, even going by the admitted case of the appellant - as available from paragraph 6 of his counter statement filed before the learned Trial Court - there was a mediation attempted prior to the respondent having issued Ext.A2 'Khula' letter. Of course, the case of the appellant is that this mediation was consequent to his attempt for reconciliation between the parties; and that the respondent had, in fact, agreed to come back to him, which she then recanted from. However, as we have already said above, he has led no evidence in support of his assertion that the respondent had agreed to a reunion through the mediation; but, pertinently, the factum of a mediation remains fully admitted by him.
8. The sole dispute remaining is as to the nature and 2025:KER:3619 Mat Appeal 792/24 6 tenor of such mediation, with the appellant asserting that the respondent had agreed to a reunion, which remains uncorroborated; while, the respondent asserts to the contrary. However, when this Court is convinced that there was a mediation, as has been fully admitted by the appellant, we cannot find favour with his submission that the 'Khula' is infirm for lack of such, preceding it.
9. That being said, it has been well settled by a learned Bench of this Court in Asbi K.N. v Hashim M.U. [2021 (6) KLT 159], that the declaration of 'Khula' is an extrajudicial divorce and that liberty is available to the contesting party to invoke other remedies against its validity, as per law, before the appropriate Forum.
In such view, we see no reason to interfere with the impugned judgment of the learned Family Court and consequently, 2025:KER:3619 Mat Appeal 792/24 7 dismiss this Appeal.
Sd/-
DEVAN RAMACHANDRAN JUDGE Sd/-
M.B. SNEHALATHA JUDGE RR