Kerala High Court
Rafeeq vs Jaseena on 28 November, 2019
Author: C.S.Dias
Bench: K.Harilal, C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941
OP (FC).No.660 OF 2019
AGAINST THE ORDER/JUDGMENT IN OP 199/2016 OF FAMILY COURT, TIRUR
PETITIONER/RESPONDENT:
1 RAFEEQ, AGED 38 YEARS
S/O.KUNHABDULLA, PUTHANPEEDIKAYIL HOUSE,
IRON GATE, PAYYOLI.P.O, PIN-673523,
KOYILANDI TALUK
2 FATHIMA, AGED 63 YEARS,(DIED ON 26.08.2016)
W/O.KUNJABDULLA.PUTHANPEEDIKAYIL HOUSE,
IRON GATE,PAYYOLI(P.O),PIN-673523,
KOYILANDI TALUK.
BY ADVS.
SRI.SANTHARAM.P
SMT.REKHA ARAVIND
SRI.PAUL P. ABRAHAM
RESPONDENT/PETITIONER:
JASEENA, AGED 33 YEARS
D/O.ABOOBACKER, JAS VILLA, KOLAKKATTUCHALI.P.O,
PIN-673634, CHELAMBRA VILLAGE, THIRURANGADI TALUK,
MALAPPURAM DISTRICT.
R1 BY ADV. SRI.JAMSHEED HAFIZ
R1 BY ADV. SMT.T.S.SREEKUTTY
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
28.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No.660 OF 2019 2
JUDGMENT
C.S.DIAS, J.
The 1st respondent in O.P. No.199/2019 on the file of the Family Court, Tirur is the petitioner. The respondent herein is the petitioner in the original petition.
2. The respondent filed the original petition, seeking a decree for return of money and gold ornaments weighing 64¼ sovereigns, allegedly misappropriated by the petitioner and his mother. It is submitted that petitioner's mother is now no more.
3. The respondent filed I.A. No.1705/2019, seeking leave of the Court to amend the original petition as follows:-
a. Cause title to be amended to include Section 7(1)
(b) of the Family Court Act.
b. Date of Talaq in paragraph No.5 to be corrected as 03.10.2015 instead of 03.01.2015.
c. To insert an additional paragraph after the 1st paragraph of the original petition; seeking a declaration that the marriage is no longer valid . OP (FC).No.660 OF 2019 3 d. To correct the cause of action to include the pronouncement of Talaq as 03.10.2015.
e. Relief was sought to be amended to declare that there is no matrimonial relationship between the petitioner.
f. To correct the value of the gold ornaments from Rs.20,000/- to Rs.28,480/-.
4. The Family Court by the impugned order dated 11.10.2019, allowed application grating leave as sought for, to amend the pleadings on the ground that the amendment would not cause any change or nature to proceedings and also that it do not create any fresh cause of action or prejudice to other side.
5. It is challenging the above order, the O.P.(F.C) is filed under Article 227 of the Constitution of India.
6. Heard Sri.Santharam, the learned counsel for the petitioner and Sri.Jamsheed Hafiz, the learned counsel for the respondent.
7. The learned counsel for the petitioner submits that the amendments that are sought to be incorporated OP (FC).No.660 OF 2019 4 are unnecessary and would change the very nature of the proceedings. The learned counsel for the respondent supports the impugned order passed by the Family Court.
8. On going through the amendments that are sought to be incorporated in the original petition, we are of the considered view that Clauses '(a)', '(b)' and '(d)' are only corrections with reference to dates; which the counsel for the petitioner submitted were inadvertent clerical errors. With regard to Clauses '(c)' and '(e)', we hold that the amendments are wholly unnecessary and unwarranted, especially in a petition filed for recovery of money and gold ornaments. If either of the parties has a case that, there was no proper pronouncement of Talaq, there are alternative statutory remedies available to them for dissolution of their marriage either under the personal law or under the Dissolution of Muslim Marriages Act,1939.
9. With reference to Clause '(f)' of the application, seeking to enhance the market value of the gold ornaments, it is settled law in a plethora of precedents of this Court that, the courts are bound to decree the suit OP (FC).No.660 OF 2019 5 ordering the market value of the gold ornaments to be paid at the time of passing the decree. Therefore, the enhancement of the market value of the gold ornaments from Rs.20,000/- to Rs.28,480/- is also found unnecessary.
10. In view of the aforesaid findings, we are of the view that leave can be granted in respect of amendments to Clauses '(a)', '(b)' and '(d)' of the application and be refused in respect of the reliefs '(c)', '(e)' and '(f)', which are unwarranted and are hence accordingly rejected.
In the result, this original petition is disposed as follows:-
Ext.P4 order stands modified, to the extent of granting leave to amend the clauses '(a)', '(b)' and '(d)' in I.A. No.1705 of 2019 in O.P. No.199/2019 and amendment in respect of clauses '(c)', '(e)' and '(f)' stands rejected.
Sd/-
K.HARILAL, JUDGE Sd/-
ajt C.S.DIAS, JUDGE
OP (FC).No.660 OF 2019 6
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PETITION IN
O.P.NO.199/2016 DATED 29.03.2016 ON THE FILES OF THE FAMILY COURT, TIRUR EXHIBIT P2 TRUE COPY OF THE IA 1705/2019 DATED 01.09.2019 IN OP NO.199/2016 FILED BY THE RESPONDENT ON THE FILES OF THE FAMILY COURT, TIRUR EXHIBIT P3 TRUE COPY OF THE COUNTER IN IA NO.1705/2019 DATED 01.10.2019 IN OP NO.199/2016 FILED BY THE PETITIONER ON THE FILES OF THE FAMILY COURT, TIRUR EXHIBIT P4 COPY OF THE ORDER DATED 11.10.2019 IN IA NO.1705/2019 IN OP NO.199/2016 ON THE FILES OF THE FAMILY COURT, TIRUR