Naziya Parveen N vs Sadiq Pasha on 29 February, 2024

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Kerala High Court

Naziya Parveen N vs Sadiq Pasha on 29 February, 2024

1. This is an appeal filed by the petitioner in O.P.593/2021 on the file of the Family Court, Palakkad against the judgment dated 30.6.2023 dismissing the above O.P. The appellant filed the above O.P. against her husband seeking a decree for endorsing an extra judicial divorce under the Muslim Personal Law and also for a declaration as to the marital status of the appellant. As per the impugned judgment, the Family Court dismissed the O.P. Aggrieved by the same she preferred this appeal raising various grounds.

2. The marriage of the appellant with the respondent was solemnized on 9.5.2015 as per the customary rites of the Muslim Personal law. According to the appellant, due to difference of opinion, they started living separately and in spite of mediation and conciliation made at various levels they could not reconcile their difference of opinion and the marital relationship between them has broken down irretrievably. The Mat.Appeal 813 of 2023 3 appellant had filed a divorce petition before the competent Court in Dubai wherein counseling/mediation was held on 18.11.2019, 5.2.2020 and 10.3.2020, which were unsuccessful. The respondent assaulted the appellant to withdraw the case in UAE and a criminal case was also registered against the respondent. The Dubai Court dismissed the divorce petition. However in appeal, the Court granted divorce. During the pendency of the appeal, since all attempts for reconciliation failed, she invoked Khula and offered to hand over Mehr to the respondent vide Khula deed dated 26.4.2021 which was sent to the respondent which he received on 29.4.2021. Though the marriage is dissolved by way of Khula, in order to make necessary changes in the official records, she preferred the O.P for recognition of the Khula w.e.f. 26.4.2021.

3. Before the Family Court, the respondent appeared and strongly opposed the petition. According to him there was no effective mediation or reconciliation process before invoking Khula. It is also contended that the respondent filed O.P.823/2020 before the Family Court, Tirur and obtained an ex parte decree for restitution of conjugal rights. In the above circumstances, the learned counsel for the respondent would argue that there is nothing wrong in the impugned order passed by the Family Court. On the other hand, the learned counsel for the appellant would argue that the scope of enquiry in the matter of Khula is very limited and if there is Mat.Appeal 813 of 2023 4 any serious challenge to the Khula, the remedy of the respondent is to file a separate proceeding.

4. In Asbi K.N. v. Hashim M.U, 2021 (6) KHC 129, a Division Bench of this Court held that if the Court is prima facie satisfied that there was valid pronouncement of talaq, khula, talaq-e-tafweez, it shall endorse the same and declare the status of the parties. It was also directed that the Court shall pass formal order declaring the marital status of the parties without any delay. The Division Bench also formulated the following guidelines be followed by the Family Court in a petition filed to endorse an extra judicial divorce under the Muslim Personal Law and to declare the marital status of the parties to the marriage:

"(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, Mat.Appeal 813 of 2023 5 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 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."

5. In the instant case, the Family Court mainly dismissed the O.P. on the Mat.Appeal 813 of 2023 6 ground that there was no effective attempt for reconciliation before declaration of Khula. However, from the available evidence, it is revealed that several grounds of mediation and conciliation talks were held at various levels including at Dubai and as such, we do not find any merit in the finding of the Family Court that there was no effective attempt for reconciliation. In the above circumstances, the appellant is entitled to get a decree endorsing Khula deed dated 26.4.2021 declaring that the marriage solemnized between the appellant and respondent on 9.5.2015 stands dissolved w.e.f. 26.4.2021.

6. In the result, the appeal is allowed. The impugned judgment of the Family Court dated 30.6.2023 is set aside. O.P.No.593/2021 is decreed. The Khula deed dated 26.4.2021 is accepted and it is declared that marriage between the appellant and respondent solemnized on 9.5.2015 stands dissolved w.e.f.26.4.2021.

Sd/-

Anu Sivaraman, Judge Sd/-

C.Pratheep Kumar, Judge Mrcs/22.2.2024

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