Karnataka High Court
Mr Mehraj Abdul Kareem vs Mrs. Dilshad on 12 March, 2025
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2025:KHC:10543
WP No. 9143 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 9143 OF 2024 (GM-FC)
BETWEEN:
MR. MEHRAJ ABDUL KAREEM
THROUGH HIS GPA HOLDER
H.M JINATHUL HAZIRA,
W/O ABDUL MAJEED,
D/O OF M. D.MUHAMMED,
AGED ABOUT 36 YEARS,
RESIDING AT NO.7-86/A,
SITE NO.150, 7TH BLOCK,
KRISHNAPURA, MANGALURU TALUK,
D.K.DISTRICT - 575 014.
...PETITIONER
(BY SRI. TALHA ISMAIL BENGRE, ADVOCATE)
AND:
MRS. DILSHAD
W/O MR. MEHRAJ ABDUL KAREEM,
AGED ABOUT 32 YEARS,
RESIDING AT BAITUL HAMBU,
Digitally signed
by
NEAR CAR WASH, 7TH KATIPALLA,
GAVRIBIDANUR MANGALURU - 575 003.
SUBRAMANYA ...RESPONDENT
GUPTA
SREENATH (BY SRI. AJAY PRABHU M., ADVOCATE)
Location: High
Court of THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
Karnataka
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
PASSED BY THE PRL. JUDGE FAMILY COURT DAKSHINA
KANNADA ON 06.03.2024 WHILE ADJUDICATING IA NO.7 IN
O.S.NO:35/2022 AT ANNEXURE-G, DIRECT THE TRIAL COURT
TO CONSIDER THE APPLICATION PREFERRED BY THIS
PETITIONER UNDER SECTION 45 OF INDIAN EVIDENCE ACT
R/W SECTION 151 OF CPC, TO SEND EX:D7 FOR AN EXPERT
OPINION OF HANDWRITING AND THUMB IMPRESSION TO
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NC: 2025:KHC:10543
WP No. 9143 of 2024
COMPARE THE SIGNATURE AND THUMB IMPRESSION OF
PLAINTIFF IN EX:D7 AND VAKALATH GRANT AN INTERIM
ORDER TO STAY THE FURTHER PROCEEDINGS IN OS
NO.35/2022 IN THE FILE OF PRL. JUDGE AND FAMILY COURT,
DAKSHINA KANNADA.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR
ORAL ORDER
This petition is filed by the petitioner-defendant against the respondent-plaintiff challenging the order dated 06.03.2024 passed on IA.No.7 in OS.No.35/2022, by the I Addl. Prl. Judge Family Court, D.K. Mangaluru.
2. Petitioner is the husband and the respondent is the wife before this court. Parties shall be referred to as husband and wife for the sake of easy understanding.
3. The wife had initiated a suit under Section 26 Order VII Rule 1 To 6 of CPC., with Section 2 (ii) (viii) (a), (d) of the Dissolution of Muslim Marriage Act, 1939. The said suit was filed by the wife seeking for a decree of divorce to dissolve the marriage of the plaintiff-wife with the respondent-husband and for other consequential relief.
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NC: 2025:KHC:10543 WP No. 9143 of 2024
4. The husband appeared before the Court and filed the statement of objection and in the prayer sought for dismissal of the suit and consequently sought for an order of restitution of conjugal rights in favour of the husband. The parties to the proceedings are Muslims governed by Mohammendan law.
5. During the pendency of the suit, the husband filed an application under Section 45 of Indian Evidence Act, R/w Sec.151 of CPC., IA.No.7 filed requesting the Court to send Ex.D.7 for an expert opinion (handwriting and thumb impression expert) to compare the signature and thumb impression which appeared in Ex.D.7 with the signature and the thumb impression of the plaintiff and to grant such other further relief.
6. Objections came to be filed to this application by the wife seeking dismissal of the said application on the ground that the application filed by the husband is frivolous, only with an intention to prolong and drag the proceedings and also for the reason that the husband is in Saudi Arabia and he has not participating in the proceedings before the Family Court. Hence, prayed for dismissing the application.
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NC: 2025:KHC:10543 WP No. 9143 of 2024
7. On hearing the learned counsel for both parties, the Learned Family Judge, passed an order on IA.No.7, dismissing the application on two grounds that firstly on the ground that if the document sent for an expert opinion i.e., Ex.D.7, there is a likelihood of leak the subject matter to the others. Secondly, on the ground that the defendant has relied on Ex.D.7 to prove the Khulanama, the documents itself which does not bear the signature of the parties and also on the ground that this application is filed to protract the proceedings.
8. It is the vehement contention of the learned counsel for the husband that the Family Court has not considered the relevance of Ex.D.7 and the importance of referring the said document for providing expert opinion, as Ex.D.7 is produced and got marked by the husband in his evidence, which is a request letter by the wife for Khula along with it there is a document annexed which is Khulanama deed of Khula which does not contain the signature of any party. It is also contended by the learned counsel for the husband that the wife has filed a complaint before the police station and in that she has put her signature which tallies with that of to request for Khula at Ex.D.7. Whereas in the cross examination the wife -5- NC: 2025:KHC:10543 WP No. 9143 of 2024 has stated that she has not put any signature on the Khulanama. Therefore, this aspect requires to be examined by sending the document -Ex.D.7 to the expert for an opinion to be given with regard to the signature put on the Ex.D.7 to be that of the wife, which would be relevant for deciding the case on hand.
9. Learned counsel for the petitioner-husband relies on two judgments in support of his case, which are as follows;
1) The Judgment of Division Bench of Kerala High Court reported in 2022 LiveLaw (Ker) 559.
2) The Judgment of Learned Single Judge of High Court of Judicature: Andhra Pradesh at Hyderabad, in Gulam Ghouse and others vs. Madarse Jeelania Shama-ul-uloom & another reported in 2007 (3) A.P.L.J. 6 (HC).
10. Further it is contended by the learned counsel that the Muslim Woman can resort to extra judicial divorce of khula unilaterally but however when it is not signed /consented by the husband then it would not become Mubaarat. In the present case he has not consented to it. Therefore, he has not given any consent and it is also the case of the husband that -6- NC: 2025:KHC:10543 WP No. 9143 of 2024 the procedure followed is not in conformity to the law. Therefore the Khulanama request made by the wife is inadequate and not in accordance with the Mohammedan Law of the Islamic System. Accordingly, he seeks to allow the petition, consequentially set aside the order passed by the Learned Family Judge, and refer the matter for handwriting expert for an opinion on the signature at Ex.D.7 made by the wife.
11. Per contra learned counsel appearing for the wife vehementally contends that the suit is filed by the wife for seeking dissolution of her marriage with the husband and for consequential relief stated therein for return of certain gold ornaments and for permanent alimony and for cost of the suit.
12. Pursuant to filing of the suit for divorce, the husband has filed statement of objections in which he is stated at para 11(e) that "ultimately defendant has agreed for the demand of the plaintiff for Khula the extra judicial divorce with the demand of comply the required provisions of extra judicial divorce by way of khula as contemplated under Mohammedan law. But the wife has never complied the required procedure as contemplated under the Mohammedan law". It is also stated at -7- NC: 2025:KHC:10543 WP No. 9143 of 2024 para 11(d) of the statement of objections "that, after defendant went abroad, the plaintiff demanded the extra judicial divorce by way of Khula with the defendant. The Khula request has been communicated to the defendant as per the letter dated 24.05.2022. Which is signed by the plaintiff herself reasons for the best known to her".
13. It is also not in dispute that the husband though has sought for dismissal of the suit, he has sought for restitution of conjugal rights in the prayer as counter claim. It is contended by the Learned Counsel for the wife that the case initiated by the wife is not on the basis of the Khulanama or request for the Khula. Ex.D.7 is the document that is produced and relied by the husband and not by the plaintiff-wife. Therefore, the theory of Khula being propagated and relied upon by the wife for seeking divorce is not the case of either of the party. Admittedly, Ex.D.7 is the document got marked by the husband in his evidence, which is a request letter by the wife for Khula, hence it is marked as Ex.D.7. Even in the issues framed by the Learned Family Judge, there is no issue with regard to establishing / proving the Khula by the wife or divorce to be granted on the basis of the Khula. However, there is an -8- NC: 2025:KHC:10543 WP No. 9143 of 2024 additional issue framed, for the defendant to prove that the plaintiff has initiated Khula. Therefore, it is for the defendant to prove if at all the plaintiff has initiated Khula and it is not the case of the wife that on the basis of the request for Khula she has filed the suit seeking for dissolution of her marriage.
14. Heard the learned counsel for the husband and learned counsel for the wife. Keeping the above facts in background, this application will have to be considered. This application-I.A.No.7 filed by the husband to refer the document i.e., Ex.D.7 for handwriting expert opinion and thumb impression opinion. Wherein he seeks the opinion from the expert to show that the signature on Ex.D.7 and the signature in the vakalath and thumb impression of the wife in the Ex.D.7 purportedly is one and the same. This court fails to understand how Ex.D.7 would be relevant for the purpose of the case on hand. For the simple reason that the plaintiff-wife has initiated divorce petition for dissolution of her marriage on the ground of cruelty and several other relief. It is not the case of the wife that she is seeking divorce on the basis of Khulanama (request for Khula). On the contrary it is the case of the husband that he wants restitution of conjugal rights and to dismiss the suit filed -9- NC: 2025:KHC:10543 WP No. 9143 of 2024 by the plaintiff-wife for Khula. He has relied upon the document-Ex.D.7, which he claims to have received from the plaintiff. Therefore, the plaintiff will have to stand on her own legs to prove and establish her case, if she has to succeed in the suit. When the plaintiff's case is not based on the Khula or relying on the Khula i.e., Ex.D.7, the question of referring the matter to handwriting expert to verify the signature and thumb impression on the Ex.D.7 to that of the plaint in which that of another document i.e., the complaint lodged before the police station is out of question and it is irrelevant for the purpose of deciding the case on hand.
15. The learned Family Judge, no doubt has dismissed the application but on different grounds that it is likelihood of leaking the subject matter to the others which is privity to the parties in a matrimonial proceedings and on the ground that if the defendant-husband has failed to make out the sufficient grounds to allow I.A.No.7, may be the reasons assigned by the Family Court are not legally sustainable for the purpose of rejecting the application but I do not find any good ground or cogent reason to disagree with the rejection of the application for sending the Ex.D.7 for the opinion of handwriting expert or
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NC: 2025:KHC:10543 WP No. 9143 of 2024 thumb impression expert. There is no good ground or cogent reason made out by the petitioner-husband to refer the Ex.D.7 for handwriting or thumb impression expert for an opinion for the purpose of deciding the case on hand.
16. Accordingly, I proceed to pass the following;
ORDER
(i) This petition is dismissed.
(ii) In view of the dismissal of the petition, I.A.No.1 does not survives for consideration.
(iii) In view of the matter being as old as of the year 2022, the Family Court is hereby directed to dispose of the matter expeditiously. Both the parties shall co- operate.
Sd/-
(PRADEEP SINGH YERUR) JUDGE SRK List No.: 1 Sl No.: 32 CT:SK