Kerala High Court
Raisal Moidheen vs Dr. Rashmin Noushad on 20 June, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
MAT.APPEAL NO. 869 OF 2023
JUDGMENT DATED 10.10.2023 IN OP NO.294 OF 2023 OF FAMILY
COURT,THRISSUR
APPELLANT/RESPONDENT:
RAISAL MOIDHEEN,
AGED 31 YEARS
S/O. MOIDHEEN, PAMBINEZHATH HOUSE, CK VALAVU DESOM,
MATHILAKAM P.O., PAPPINIVATTOM VILLAGE, KODUNGALLUR
TALUK, THRISSUR DISTRICT, PIN - 680685, REPRESENTED BY
POWER OF ATTORNEY HOLDER FATHER P.S.MOIDHEEN,AGED 63
YRS, S/O. SAIDU BAVA, PAMBINEZHATH HOUSE, CK VALAVU
DESOM, MATHILAKAM P.O., PAPPINIVATTOM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN - 680685
BY ADVS.
C.M.MOHAMMED IQUABAL
P.ABDUL NISHAD
MUHAMMED AMEEN
RAIHANATH T.H.
ISTINAF ABDULLAH
RESPONDENT/PETITIONER:
DR. RASHMIN NOUSHAD,
AGED 27 YEARS
D/O. NOUSHADH K.M., KUZHIKANDATHIL HOUSE, VARADIYAM
DESOM, PERAMANGALAM P.O., THRISSUR DISTRICT,
PIN - 680545
SRI PREMCHAND M, FOR PARTY RESP.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 20.06.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Mat Appeal No.869 of 2023
2
JUDGMENT
Raja Vijayaraghavan, J.
The petitioner is the husband of the respondent. The respondent has approached the Family court, Thrissur and has preferred O.P. No.294/2023 seeking to declare that the marriage between the parties have been dissolved by pronouncing "Khula" on 2.1.2023. According to the petitioner, by order dated 10.10.2023, the Family court, after recording the statement, granted the decree as prayed for.
2. Sri. C.M.Mohammed Iquabal, the learned counsel appearing for the petitioner, submitted that the order passed by the Family court cannot be sustained. According to the learned counsel, no enquiry was conducted to satisfy whether the Khula pronounced by the respondent is valid.
3. We have heard the learned counsel appearing for the respondent.
4. In X and Others v. Y and Others1, this Court had occasion to elaborate on the jurisdiction of the Family court in matters related to extra judicial divorce. It was held as follows in paragraph No. 76 of the judgment:
1
[2021 (2) KHC 709] Mat Appeal No.869 of 2023 3 "The Family Courts Act, 1984 provides for the establishment of the Family Courts to exercise the jurisdiction excercisable by District Courts or any subordinate Civil Courts under law in regard to the matters specifically referred to in S.7 of the Family Courts Act. Explanation (d) of S.7(d) of the Family Courts Act, confers the Family Court with the jurisdiction to declare the matrimonial status of any person. Therefore, there is no difficulty for the Family Court to endorse an extra - judicial divorce to declare the matrimonial status of a person. In the matter of talaq, khula, mubaraat, talaq - e - tafwiz, the Family Courts shall entertain such applications moved by either of the parties or both 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 Courts is limited. In such proceedings, the court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. If any person want to contest the effectiveness of khula or talaq, it is open for such aggrieved person to contest the same in appropriate manner known under law. In the matter of mubaraat and talaq - e - tafwiz, on being satisfied that the dissolution is being effected on mutual consent, the Family Court without further inquiry shall declare the marital status. We notice Family Courts are overburdened with large number of cases. The Family Court therefore, shall restrain from adjudicating upon such extra judicial divorce unless it is called upon to decide its validity in appropriate manner. The Family Court in such matters shall endeavour to dispose the cases treating it as uncontested matter, without any delay by passing a formal order declaring the marital status.
5. This Court had held that in the matter of unilateral dissolution of marriage, invoking khula and talaq, the scope of Mat Appeal No.869 of 2023 4 inquiry before the Family Courts is limited. In such proceedings, the court is only required to record the khula or talaq to declare the marital status of the parties after due notice to the other party. If any person wants to contest the effectiveness of khula or talaq, it is open for such aggrieved persons to contest the same in appropriate manner known under law.
6. Later, in Asbi K.N. v. Hashim M.U.2, it was held that the endorsement of extrajudicial divorce and consequential declaration of the status of the parties by the Family Court invoking Section 7(d) of the Act is contemplated only to have a public record of the extrajudicial divorce. Hence, detailed enquiry is neither essential nor desirable in a proceeding initiated by either of the parties to endorse an extrajudicial divorce and to declare the marital status. It was further 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. The Court is only required to pass formal order declaring the marital status without any delay. If any of the parties want to challenge the extrajudicial divorce by talaq, khula, 2 [2021 (6) KHC 159] Mat Appeal No.869 of 2023 5 mubaarat or talaq - e - tafweez mode, he / she is free to challenge the same in accordance with law in appropriate forum.
7. In view of the law settled by this Court, the contention of the learned counsel that the case ought to have been decided on merits cannot be sustained. As held in the above judgments, it would be open to the aggrieved person to challenge the extrajudicial divorce in accordance with law.
8. In that view of the matter, there is no merit in this petition. No interference is warranted under Article 227 of the Constitution of India. If the petitioner is in any way aggrieved, he may challenge the declaration of Khula in accordance with law.
This petition is disposed of.
Sd/-
RAJA VIJAYARAGHAVAN V, JUDGE Sd/-
P.M.MANOJ, JUDGE IAP