Kerala High Court
Makkattu Kalathil Sulaikha vs Paruthipra Saidalikutty on 26 June, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 31ST DAY OF MAY2017/10TH JYAISHTA, 1939
Mat.Appeal.No. 251 of 2005
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O.P.NO. 352/2001 OF THE FAMILY COURT, MANJERI
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APPELLANT/RESPONDENT :
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MAKKATTU KALATHIL SULAIKHA,
AGED 32 YEARS, D/O.SAIDALAVI, NADUVATTAM,
AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT.
BY ADV. SRI.K.M.SATHYANATHA MENON
RESPONDENT/PETITIONER :
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PARUTHIPRA SAIDALIKUTTY,
AGED 47 YEARS, S/O.POCKER, NADUVATTOM AMSOM,
DESOM, TIRUR TALUK.
BY SRI.T.KRISHNAN UNNI (SENIOR ADVOCATE)
ADV. SRI.C.M.MOHAMMED IQUABAL
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 20-02-2017, ALONG WITH MA.NO. 353 OF 2005, THE COURT
ON 31-05-2017 DELIVERED THE FOLLOWING:
Msd.
Mat.Appeal.No. 251 of 2005
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APPENDIX
PETITIONER(S)' ANNEXURES :
ANNEXURE 1: TRUE COPY OF THE ORDER IN R.P.(F.C)NO. 101/2003
DATED 26.06.2008.
ANNEXURE 2: TRUE COPY OF THE ORDER IN CRL.M.A.NO. 6522/2008 IN
R.P.(F.C)NO. 101/2003 DATED 03.07.2008.
RESPONDENT(S)' ANNEXURES :
NIL
//TRUE COPY//
P.S.TOJUDGE
Msd.
A.M.SHAFFIQUE, J
&
K.RAMAKRISHNAN, J
* * * * * * * * * * * * * *
Mat.Appeal No.251 of 2005
&
353 of 2005
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Dated this the 31st day of May 2017
J U D G M E N T
Shaffique, J These two appeals arise from a common judgment dated 17/06/2006 in O.P.Nos.352/2001 and 61/2001.
2. O.P.No.61/2001 is filed by the appellant/wife seeking for partition of properties which came to be dismissed. O.P.No.352/2001 is filed by the respondent in the appeal seeking for a mandatory injunction to restrain the appellant from trespassing into the property or interfering with his possession. The said suit was decreed and order of mandatory injunction was also granted directing the appellant to vacate the petition schedule property with all her belongings.
4. The short facts arising in these cases are as under:
The parties are described as shown in the original petition. The parties to the marriage are the petitioners in the aforesaid two cases. The marriage was dissolved on 10/03/2000. Mat.Appeal Nos.251/2005 & 353/2005 2
5. In O.P.No.352/2001, the contention is that the scheduled property was purchased by the petitioner and his brother Kunhi Mohammed in the year 1989. Kunhi Mohammed assigned his right in the property to the petitioner in 1997. Hence he claimed absolute title in respect of the property. There is a building in the property in which the respondent was residing in her capacity as the wife of the petitioner, with his permission. On her being divorced, the permission was withdrawn on 10/03/2000. Petitioner alleges that the marriage was dissolved as the petitioner had come to know about the extra marital relationship of the respondent. Though the petitioner requested her to vacate the premises, she did not do so and hence a suit was filed seeking for mandatory injunction to direct her to vacate the house and for permanent prohibitory injunction restraining her from trespassing into the property.
6. The respondent filed counter statement taking certain technical pleas regarding the right of power of attorney holder to institute the proceedings. She further contended that she had not been divorced as she did not receive any intimation regarding the same. It is further contended that when the petitioner could not Mat.Appeal Nos.251/2005 & 353/2005 3 raise amounts for purchasing half right in the property, the respondent had sold her gold ornaments and obtained amount from her father which was utilised for the purpose of purchasing the property. It is further contended that the petitioner had gifted half right in the property to the respondent on 17/07/1997 and the gift was accepted by the respondent. According to the respondent, she has been residing in the building as the wife of the petitioner and therefore she has the right to continue to reside in the building.
7. O.P.No.61/2001 was filed by the respondent in O.P.No.352/2001 wherein she seeks for division of the petition schedule property alleging that she got half right over the property on the basis of an oral gift given by the respondent/husband in her favour.
8. Counter affidavit has been filed by the respondent denying the aforesaid allegation and reiterating the contentions raised by him in O.P.No.352/2001.
9. Evidence was taken in O.P.No. 352/2001 treating it as the leading case. PWs 1 to 3 were examined on the side of the petitioner and two witnesses were examined on the side of the Mat.Appeal Nos.251/2005 & 353/2005 4 respondent as RWs 1 and 2. Petitioner relied upon Exts.A1 to A7 and Exts.C1 to C3 were marked as Court exhibits.
10. By a common order dated 17/06/2005, the Family Court had allowed O.P.No.352/2001 and dismissed O.P.No.61/2001. The respondent/wife preferred appeal before the High Court as M.F.A.852/2002. The High Court, based on the decision reported in Shamim Ara v. State of U.P., [2002 (3) KLT 537] set aside the impugned judgment and the matter was remitted back for fresh disposal and the parties were allowed to adduce further evidence. The Family Court had upheld the contention of divorce on the basis of the decision reported in Haneefa v. Pathummal Beevi [1972 KLT 512] and Ummulkulus v. Executive Magistrate [1990 (2) KLT 524] which are reversed by the Apex Court. After remand, the petitioner has amended the petition for incorporating circumstances under which he happened to dissolve the marriage with the respondent in which he had stated that the petitioner had extra marital relationship. The respondent/wife filed counter affidavit denying the said contentions. PW's 2 and 3 were examined after remittance and the petitioner was recalled and Mat.Appeal Nos.251/2005 & 353/2005 5 examined. He marked Ext.A5. The marking of the document was objected by the respondent and the same was sent for opinion of the handwriting expert. The letter was allegedly written by the respondent wife to her paramour. The report of the handwriting expert indicated that the letter was probably written by the respondent. The respondent filed an application I.A.No.1468/2004 to set aside the report. The handwriting expert was summoned to prove the report. I.A.No.1468/2004 was dismissed whereby the opinion of the expert was accepted by order dated 22/05/2005. The parties adduced evidence after acceptance of the said report.
11. The main issue that was considered by the Family Court on the basis of the remittance order, was whether there was a dissolution of marriage on 10/03/2000 as contended by the petitioner or whether the marital relationship between the respondent and the petitioner was subsisting. The Family Court, after a detailed consideration of the factual aspects involved in the matter, came to a finding that the divorce stands proved. However, the respondent/wife had failed to prove the case of oral gift and accordingly the impugned judgment was passed. Mat.Appeal Nos.251/2005 & 353/2005 6
12. Learned counsel for the appellant, while impugning the aforesaid judgment, contended that there is no valid talak as held by the Apex Court in Shamim Ara (supra) and [2002(7) SCC 518]. Further, re-appreciation of evidence would show that none of the conditions imposed for a valid talak has taken place between the parties. Further, sufficient evidence was available to prove a case of oral gift as far as the property in question is concerned and therefore the Family Court is justified in dismissing the suit for partition.
13. On the other hand, Sri.T.Krishnan Unni, learned senior counsel appearing for the respondents in the appeal supported the view taken by the Family Court and contended that the marriage between the parties has been dissolved by a talak and the conditions prescribed in Shamim Ara (supra) has been fully complied with by adducing necessary evidence in that regard. Further, there are no circumstances to support the contention of the appellant/wife that she is entitled for a partition of the schedule property. The oral gift alleged was not proved in the case and therefore a question for partition does not arise at all. Mat.Appeal Nos.251/2005 & 353/2005 7
14. First, we shall consider whether the pleadings and evidence in the case supports the view that there was a valid talak. One main contention urged by the learned counsel for the appellant is that there was no material to show that there was a triple talak which is mandatory as far as Muslim divorce is concerned. According to the petitioner, he had divorced the respondent on 10/03/2000. After remand, the plaint was amended and it was pleaded that the respondent was having extra marital relationship and being convinced about the same, the matter was discussed with her. Thereafter, the relatives of the parties also had a discussion and it was rather convinced that it is not possible to proceed with the marriage. Pursuant to the same, he had divorced the respondent. According to him, divorce was effected by way of talak in the presence of two witnesses. Further, talak was put in writing and informed to the respondent. He had also contended that the respondent/wife had filed M.C.No.363/2000 before the Court seeking maintenance and by virtue of the same, he had withdrawn the permission granted to the respondent to reside in the building.
Mat.Appeal Nos.251/2005 & 353/2005 8
15. In the written statement, she denied the contention that the petitioner had divorced her. According to her, no information was received by her in regard to the alleged divorce. In the additional written statement, she denies the fact of divorce. It is also contended that the divorce, as stated by the petitioner is not in accordance with Shariat Law. PW1 is the petitioner. He was examined on 16/03/2002 and again on 22/12/2004 after remand. After remand, he stated that he had divorced the respondent on 10/03/2000 at Sharjah by way of talak in the presence of two witnesses and both those witnesses are still alive. The matter was informed to his wife. The reason for divorce was that she was having extra marital relationship with a person by name Babumon. He had gone to Babumon's room. He got a letter written by his wife to Babumon. He produced Ext.A5 which was opposed by the learned counsel for the respondent. According to him, he was convinced that the letter was written by his wife. The matter was informed to the respondent and her uncle and thereafter there was mediation between the relatives. Mediation took place twice and they informed the decision to him. She admitted before the mediators that she had written such a Mat.Appeal Nos.251/2005 & 353/2005 9 letter. The petitioner informed his relatives that he cannot proceed with the marriage and accordingly, he divorced the respondent by talak and a letter in that regard was sent by post. Ext.P6 series are the postal receipts. He further relied upon Ext.A7, an affidavit filed by the respondent in M.C.363/2000 by which she admitted about the divorce. The opinion of the handwriting expert with reference to Ext.P5 is marked as Ext.C3. In cross-examination, he reiterated the statement given by him in chief. He stated that his wife was informed about talak by letter. He sent the letter to his uncle who had sent the same to the respondent by post. He does not remember the date. His uncle had informed him that the letter was sent to the respondent. He also deposed regarding the name and address of the witnesses who had witnessed the talak. According to him, they are all workers in an Arab's house. They are his friends and are in Gulf. He denied the suggestion that the witnesses are not being examined since there is no such witnesses. He further stated that no one has seen him taking the letter from the table of Babumon. The expert was examined in I.A.No.1468/2004. Ext.C3 is the report. As per his opinion, the person who wrote the Mat.Appeal Nos.251/2005 & 353/2005 10 standard writings stamped and marked A1 to A9 and S1 to S33 most probably wrote the questioned writings similarly stamped and marked as Q1, Q1(a) to Q1(g), Q2 and Q2(a). In cross- examination, he deposed that he could not see any purposeful forgery as to the questioned writings.
16. PW2 is the power of attorney holder of the petitioner. He is the 2nd respondent in O.P.No.61/2001. He is the uncle of the petitioner. In his affidavit in lieu of chief examination, he stated that the petitioner obtained a letter written by the respondent to Babumon and the matter was informed to PW2. Thereafter, discussions took place in the house of Bava Gurukkal. She was also told and the matter was enquired. She admitted to have written the letter. He therefore informed the petitioner. Again mediation took place and it was noticed that they could not proceed with the matrimonial relationship and the mediators were convinced about the said fact. This fact was informed to the petitioner who opined that he cannot continue the matrimonial relationship with the respondent. Accordingly, he divorced her by talak. He had sent the letter to PW2. The letter was sent by registered post to the respondent and her father and also to the Mat.Appeal Nos.251/2005 & 353/2005 11 mosque. Postal receipts are produced as Exts.A6 series. In cross- examination, he reiterated the fact regarding the discussions being held in the presence of the mediators and the fact that the letter was sent by registered post.
17. PW3 is a person who knows both the parties. He submitted that he had interfered in respect of the problem between them and it was on account of the extra marital relationship of the respondent that the issues had arisen. He had interfered and talked to her parents in the presence of PW2 and the relatives of respondent. They had discussion twice. During the 1st discussion itself respondent admitted to have written such a letter. During the 2nd discussion it was decided to separate. Respondent's father demanded Rs.50,000/- and PW2 agreed to pay Rs.25,000/-. However, it was decided to pay Rs.50,000/-, which PW2 agreed. It was also decided to prepare an agreement but the respondent's party did not turn. Thereafter it was informed that the petitioner had divorced the respondent by talak. In cross-examination, he reiterated the aforesaid facts. He further submitted that both parties agreed that the couple should divorce.
Mat.Appeal Nos.251/2005 & 353/2005 12
18. RW1 is the respondent. She denied the fact that he had divorced her. She had not received any letter regarding the same. RW2 is a person who knows both the parties. His evidence is only in regard to the claim for oral gift. Ext.A5 is the letter which had been marked on the side of the petitioner. Ext.A6 is the certified copy of the letter dated 07/04/2004 and Ext.A6(a) is the postal receipt. Ext.A7 is the certified copy of the affidavit filed by the respondent on 25/07/2002.
19. In Shamim Ara (supra), the Apex Court, after considering the principles of Mohammedan law held that the concept of talak as ordained by the Holy Quran is that talak must be for a reasonable cause and should be preceded by attempts at reconciliation between the husband and the wife by two arbiters, one from the wife's family and the other from the husband's. If the attempt fails, talak may be effected. The Apex Court was approving the judgment in Sri.Jiauddin Ahmed v. Mrs.Anwara Begum [(1981) 1 GLR 358] and Must.Rukia Khatun v. Abdul Khalique Laskar [(1981) 1 GLR 375]. In fact, it is for the very purpose of verifying whether there was a mediation prior to the talak that the matter was remitted back by the Appellate Court in Mat.Appeal Nos.251/2005 & 353/2005 13 an earlier occasion.
20. After remand, petitioner himself was recalled and examined and two witnesses were also examined to prove the mediation effected between the parties and the failure of mediation. That there was a mediation and conciliation for settlement of the dispute is proved through the evidence of PWs 2 and 3. This fact is not disputed by the respondent by examining her father and brother who participated in the mediation. As held by the Apex Court, there should be a genuine reason for mediation prior to the talak. The husband had doubt regarding the extra marital relationship the wife had with another person. This fact is proved by producing Ext.A5 letter which is accepted in evidence after examining the handwriting expert who confirmed the said fact. Under such circumstances, there cannot be any doubt regarding the proposition that the principles enunciated by the Apex Court in Shamim Ara (supra) had been complied with.
21. However, learned counsel for the appellant argued that there was no talak in strict terms. He placed emphasis on the letter in order to indicate that there was no talak in terms with the Shariat laws, whereas learned senior counsel, while placing Mat.Appeal Nos.251/2005 & 353/2005 14 reliance on the commentary on Mohammedan law by Mulla referred to paragraph 310, argued that for giving effect to talak, there is no necessity that it should be pronounced in the presence of the wife or even addressed to her. The talak pronounced in her absence takes effect even if it is not communicated to her, for the purpose of dower it is not necessary that it should come to her knowledge and her alimony may continue till she is informed about the divorce. It is also contended that a talak nama may only be the record of the fact of an oral talak. It is contended that the petitioner had proclaimed oral talak in the presence of witnesses and this fact was intimated to all concerned by a letter in writing. In so far as there is no specific format, the oral evidence of PW1 itself is enough to prove the said fact. Further, that she had knowledge about the talak is evident from the affidavit filed by her and produced as Ext.P7 where she admits the fact that the petitioner had divorced her by way of talak.
22. Though it is contended by the learned counsel for the appellant that he had only proclaimed talak twice, the learned senior counsel relying upon paragraph 311 of the very same text argued that talak may be effected by 'talak ahsan' which Mat.Appeal Nos.251/2005 & 353/2005 15 consisted of a single pronouncement of divorce made during tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat. The second one is 'talak hasan' which consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs and the third is Talak-ul-bidaat or talak-i-badai which consists of three pronouncements made during a single tuhr either in one sentence or in separate sentences or a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve a marriage. The Apex court in Shamim Ara (supra) held that the talak in effective has to be pronounced. The term pronounce means to proclaim, to utter formally, to utter rhetorically, to declare, to utter, to articulate etc. The husband has to prove talak by adducing evidence regarding pronouncement of talak. A contention has been urged that there was no talak in the eye of law as there was no proclamation thrice. As already indicated, talak can be even proclaimed by a single pronouncement during a tuhr followed by abstinence from sexual intercourse. In the case on hand, the document relied upon is only a document intimating the talak and it is not a talak Mat.Appeal Nos.251/2005 & 353/2005 16 in writing. The talak had taken place abroad in the presence of the witnesses and the petitioner had proved the said fact by adducing oral evidence. The letter issued by the petitioner which was communicated to the respondent confirms the said aspect and she also admits that there was a valid divorce in the affidavit filed and she proceeded on the basis that there was a divorce. Accordingly, we are of the view that this is a case in which there was a valid divorce by pronouncement of talak and therefore it has to be found that the respondent is a divorced wife.
23. As far as the claim of the petitioner regarding the property is concerned, there is no dispute about the fact that title remains with him. The respondent has taken up a case that the ornaments and money taken from her father was utilised for purchasing the property. Further, she claims partition of the property on the basis of an oral gift. Other than the statement of the petitioner, the only evidence is that of RW2. Her contention is that the oral gift was effected on 17/07/1997 and she had accepted the same since the property was in her possession. The Family Court observed that the case of the respondent during the cross-examination itself was contradictory. According to her, she Mat.Appeal Nos.251/2005 & 353/2005 17 has obtained Rs.50,000/- from her father and paid to the petitioner. It was one month after the alleged oral gift Thereafter, she stated that it was after 45 days from the date of oral gift. She again deposed that the money was handed over to PW2. From the pleadings, it seems that her contention was that money was paid prior to acquisition of property. It is thereafter that the petitioner had come back from abroad and gifted her the property. But it is relevant to note that the assignment by Kunhi Muhammed in respect of half right of the property is in October 1997. It is also seen from the evidence of RW2 that he had witnessed the oral gift. According to him, the oral gift was in respect of half the right of the property of the petitioner/husband. But, as on 17/07/1997, the petitioner/ husband had not obtained the entire right of the property. The Family Court did not believe the version of RW2. On a re-appreciation of the evidence of RWs 1 and 2, there are sufficient contradictions to discard the said evidence. First of all, the contention of the respondent/wife that she had contributed to purchase the property is not supported by believable evidence. No particulars regarding the quantum of gold ornaments or money paid has been specifically mentioned. Mat.Appeal Nos.251/2005 & 353/2005 18 Even otherwise, when there is a pleading of oral gift on a particular date, it has to be proved to the hilt. It is true that, as per Mohammedan Law an oral gift is also valid. Before arriving at such a conclusion, the entire factual scenario of the case has to be considered. The wife claims half right over the property by contending that the husband had gifted half right in her favour. As rightly pointed out by the Family Court, at the relevant time of the alleged gift i.e. on 17/7/1997, the petitioner had not even acquired the entire right of the property. At the relevant time, it was in the joint name of the petitioner and his brother. Therefore, there is justification on the part of the Family Court to have not accepted the contention regarding oral gift.
24. On an overall consideration of the factual and legal aspects involved in the matter, we are of the view that no grounds are made out for interference in the appeal.
25. Apparently, the direction to issue a decree for mandatory injunction and permanent prohibitory injunction is, as a consequence of the above findings. A divorced wife is not entitled to claim any right in the property of the husband and therefore the Family Court was justified in granting the decree, as Mat.Appeal Nos.251/2005 & 353/2005 19 sought for by the petitioner/husband.
In the result, as no grounds are made out for interference. The Mat. Appeals are dismissed.
(sd/-) (A.M.SHAFFIQUE, JUDGE) (sd/-) (K.RAMAKRISHNAN, JUDGE) jsr