Muhammed Fazil vs Rasvana on 11 April, 2025

[Cites 8, Cited by 0]

Kerala High Court

Muhammed Fazil vs Rasvana on 11 April, 2025

In the light of the Muslim Women (Protection of Rights on Divorce) Act, 1986 whether a divorced muslim wife is entitled for maintenance under Section 125 of the Code of Criminal Procedure (Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023) and whether "talaq" without attempting for a reconciliation between the parties is valid, are the main issues raised before us for consideration.

2. The above appeal and the revision petition arise from the common order dated 31.10.2016 in OP No.1178 of 2014 and MC No.367 of 2014 on the files of the Family Court, Thrissur. Since the parties and the cause of action are the same , the above cases are heard together and being disposed of by this judgment.

3. For sake of convenience, the parties are referred to as, "husband" and "wife".

4. OP No.1178 of 2014 was filed by the wife for return of gold ornaments, household articles and money. The wife also filed MC No.367 of 2014, along with her two minor children, claiming 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..6..

maintenance under Section 125 of the Code of Criminal Procedure. The Family Court, after elaborate consideration of the issues, decreed OP No.1178 of 2014, directing the husband and his parents to return 145 sovereigns of gold ornaments and household articles listed out in Schedule B to the petition. MC No.367 of 2014 was allowed by the Family Court, directing the husband to pay monthly maintenance @ ₹7,000/- to the wife and ₹4,000/- each to the minor children.

5. Challenging the above, the husband is before us in these proceedings.

6. The marriage between the parties was solemnized on 13.07.2008. Two male children were born in the wedlock. The wife alleged that, at the time of her marriage, she received 145 sovereigns of gold ornaments from her parents and 10 sovereigns as gifts from her relatives; and on the next day of the marriage, her father, who was employed in a gulf country, gave ₹5,00,000/- as gift for purchasing a car. After one month of marriage, the wife became pregnant. The husband returned to gulf for his employment. It is alleged that, during the month of November, 2008, the husband's father demanded 35 sovereigns of gold ornaments by 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..7..

convincing her that some investment can be made in a scheme of the Navarathna Jewellery so that she can get a steady income of ₹8,000/- per month. Accordingly, she entrusted 35 sovereigns of gold ornaments to the mother-in-law as a trustee; and from her, the father-in-law received those gold ornaments and sold the same for ₹4,00,000/-; however, the amounts received from the sale of those ornaments were deposited in his name. It is further alleged that, as a customary practice, household articles listed out in Schedule B were taken to the matrimonial home after the birth of their first child. It is her further allegation that, when the husband came from the gulf in August, 2009, he demanded her gold ornaments for constructing a residential building promising that the parents of the husband will execute a document in favour of the husband. For constructing the foundation of the house, he sold 10 sovereigns of gold ornaments of the wife and the sale proceeds of ₹1,00,000/- was entrusted by the husband to the father-in-law. It is further alleged that, for the construction of the residential house, 100 sovereigns of gold ornaments of the wife were taken by the father- in-law as a trustee; and accordingly, the money received by the sale of 35 sovereigns and 110 sovereigns of gold ornaments were utilized for the construction of the residential building of 2090 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..8..

sq.ft. According to the wife, after construction of the house, the parents-in-law started ill-treating her. She was not taken care of by the husband or his parents during her second pregnancy. After the birth of the second child, she was brought to the matrimonial home at the instance of relatives and local people, but he neglected the wife. On 04.08.2014, the husband came from the gulf without any intimation and he started abusing the wife with filthy language and stated that he was going to marry again. She was assaulted and ill-treated by the respondents and was not permitted to live in the matrimonial home. Thus, she along with her two children went to her parental home. Thereafter she approached the Family Court for return of gold ornaments, household articles, and for maintenance under Section 125 of the Code of Criminal Procedure.

7. The main contention raised by the husband is that, since he had pronounced "talaq" on 12.08.2014, the wife is not entitled to get any maintenance; and moreover, the Family Court has no jurisdiction to entertain the original petition filed by the wife. The marriage between the parties and the birth of two children in the wedlock are admitted by the husband. According to the husband, the wife neither brought 145 sovereigns of gold ornaments nor 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..9..

received any gold as gift from her relatives. The contention regarding the entrustment of ₹5,00,000/- for purchase of the car is also denied by the husband. Further, the contention of the wife that 35 sovereigns of gold ornaments were given to the father-in- law and he deposited the sale proceeds of the same in the Navarathna Jewellery were denied by the husband. According to him, the wife maintained a distance from his relatives and would often isolate herself in their room. He alleged that she showed no love or affection towards him, which compelled him to leave for gulf for employment. Whenever he attempted to contact his wife over phone, it would either be busy or she would give lame excuses for not answering his calls. He contended that the maternity expenses were borne by him and his family. The gold ornaments of the wife were claimed to have been taken by her to her parental home to be kept in her mother's bank locker. The husband further contended that he gifted 25 sovereigns of gold ornaments to the wife and the same were also entrusted to her mother. According to him, when he came back from gulf on 04.08.2014, she left the matrimonial home along with the two children without disclosing anything; and though he tried to contact her over phone, she did not respond. Thereafter, on 07.08.2014, he issued a registered lawyer notice to the wife;

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and since there was no reply, he divorced her on 12.08.2014. Therefore, according to the husband, the marital relationship between him and his wife ceased to exist; the present petition is not maintainable; and the wife is not entitled to get any relief. The husband also alleged that the wife abandoned his company without providing any reasonable justification, and since he has already pronounced "talaq", the wife and children are not entitled to any maintenance.

8. We have heard Sri.N.M.Madhu, the learned counsel for the husband; and Sri.Krishnanunni T, the learned senior counsel for the wife.

9. The following issues arise for consideration in these cases;

a)Whether the "talaq" alleged to have been pronounced by the husband is valid and legal?

b)Whether the petition for return of gold, money, and household articles, as well as the petition for maintenance of Muslim women/divorced Muslim women is maintainable before the Family Court?

c)In the light of Muslim Women (Protection of Rights on Divorce) 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..11..

Act, 1986, whether a divorced muslim wife is entitled for maintenance under Section 125 of the Code of Criminal Procedure? If so, whether the maintenance granted by the Family Court is sufficient?

d)Whether the wife is entitled for return of gold, money and household articles?

10. We shall consider the first issue raised. It is the specific case of the husband that, when he came back from gulf, the wife left the matrimonial home on 04.08.2014 without any valid reason and though he tried to contact her over the phone, she did not respond. Thereafter, a registered lawyer notice was sent to the wife on 07.08.2014 and pronounced "talaq" on 12.08.2014. According to the husband, once "talaq" is pronounced, the entitlement of a divorced Muslim woman, including her properties, can be enforced only through a Magistrate's Court under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short, "the 1986 Act"). It was further contended that since the 1986 Act was enacted after the Family Courts Act, 1984, which confers exclusive jurisdiction on the Magistrate's Court over divorced Muslim women, proceedings before the Family Court are not maintainable due to lack of jurisdiction. On the other hand, the wife contended that 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..12..

there were no valid reasons for "talaq"; and the "talaq" alleged to have been pronounced on 12.08.2014 is not valid since there was no attempt of settlement by the husband.

11. A perusal of Ext.B15 lawyer notice shows that the husband has not raised any valid reasons or grounds for issuing the same. It is admitted that the husband was in the gulf and he returned to his native place only on 04.08.2014. Immediately thereafter, i.e., on 07.08.2014, a lawyer notice was issued, and on 12.08.2014, "talaq" was pronounced. Under the Shariat Law, mandatory conditions of mediation have to be followed for pronouncement of "talaq". In this context, it is relevant to refer to the judgment of the Apex Court in Shamim Ara v. State of U.P. [2002 KHC 829], wherein the Apex Court, accepted the view expressed by the Division Bench judgment of the Gauhati High Court in Must. Rukia Khatun v. Abdul Khalique Laskar [(1981) 1 GLR 375]. It was held:

"The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and 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 attempts fail talaq may be effected."

In the case on hand, no reasonable cause has been stated by the husband for pronouncing "talaq". There was no attempt for 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..13..

reconciliation between the parties in the presence of any mediator/s. Talaq was pronounced without following the mandatory conditions as held in Shamim Ara (supra). Hence, we hold that "talaq" alleged to have been pronounced on 12.08.2014 is not legally valid.

12. As regards the question whether the petition by a divorced wife is maintainable before the Family Court, it has already been settled by this Court in Sheeba Pulikkal v. Shoukath Ali [2011 (4) KHC 555] that the claim for return of gold ornaments and money is a claim of civil nature and so, the Family Court has jurisdiction to entertain the same. Accordingly, we hold that the petitions filed by the wife before the Family Court are maintainable.

13. The next question that arises for consideration is whether the claim for maintenance by divorced Muslim women under Section 125 of Code of Criminal Procedure is maintainable. The husband contended that since he has pronounced "talaq", the Family Court has no jurisdiction to entertain the wife's petition for maintenance. The wife, on the other hand, argued that there was no valid "talaq" pronounced by the husband and hence, she is entitled to file a petition for maintenance under Section 125 of the Code of 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..14..

Civil Procedure. Relying on the judgment of the Apex Court in Danial Latifi & Others v. Union of India [MANU/SC/0595/2001], the wife further argued that maintenance would extend to the whole life of the divorced wife unless she gets married for a second time.

14. We have considered the arguments in detail. The question as to whether the claim for maintenance by Muslim women/divorced Muslim women under Section 125 of Code of Criminal Procedure is maintainable or not, has been decided by the apex court in Mohd. Abdul Samad v. State of Telangana [2024 KHC 6356], wherein it was held that Section 125 of the Code of Criminal Procedure cannot be excluded from its application to a divorced Muslim woman irrespective of the law, under which she is divorced. There cannot be any disparity in receiving maintenance on the basis of the law under which a woman is married or divorced. The same cannot be a basis for discriminating against a divorced woman entitled to maintenance as per the conditions stipulated under Section 125 of the Cr.P.C. or any personal or other law such as the 1986 Act. In the concluding paragraph, the apex court laid down thus:

"a) Section 125 of the CrPC applies to all married women including Muslim married women.

b) Section 125 of the CrPC applies to all non-Muslim divorced women.

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c) Insofar as divorced Muslim women are concerned, -

i) Section 125 of the CrPC applies to all such Muslim women, married and divorced under the Special Marriage Act in addition to remedies available under the Special Marriage Act.

ii) If Muslim women are married and divorced under Muslim law then Section 125 of the CrPC as well as the provisions of the 1986 Act are applicable. Option lies with the Muslim divorced women to seek remedy under either of the two laws or both laws. This is because the 1986 Act is not in derogation of Section 125 of the CrPC but in addition to the said provision.

iii) If Section 125 of the CrPC is also resorted to by a divorced Muslim woman, as per the definition under the 1986 Act, then any order passed under the provisions of 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC." Therefore, as held by the apex court in Mohd. Abdul Samad (supra), the 1986 Act is not in derogation of Section 125 of the Code of Criminal Procedure, but in addition to the said provision. Following the judgment in Mohd. Abdul Samad (supra), we hold that the petition filed by the wife for maintenance under Section 125 of the Code of Criminal Procedure before the Family Court is maintainable.

15. As regards the claim for maintenance, the wife claimed that she is unemployed and not having any income and her minor children are studying in school. According to her, the husband was working in a school and was earning ₹80,000/- as salary and even then, he neglected to pay maintenance to them and she was not 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..16..

allowed to stay in the matrimonial home and was sent to her parental home along with the children. The husband denied the contention of his income of ₹80,000/- per month. According to him, the wife left his company without any reasonable excuse. Though notice was sent, she did not return to the matrimonial home, and thus, he pronounced "talaq". The husband admitted that he was getting an amount of ₹40,000/- to ₹50,000/- per month. The Family Court, after proper consideration of the materials on board, granted maintenance @ ₹7,000/- per month to the wife and ₹4,000/- each to the minor children, which is only just and reasonable. No attempt is made to contend otherwise. Hence, we are not inclined to interfere with the same.

16. The next issue to be considered is the challenge against the decree for return of 145 sovereigns of gold ornaments, household articles and ₹5,00,000/-. The marriage between the parties was solemnized on 24.07.2008. The wife left the matrimonial home on 04.08.2014. Two children were born in the wedlock. It is the case of the wife that at the time of marriage, her parents gave her 145 sovereigns of gold ornaments and her relatives gifted 10 sovereigns; and on the next day of marriage, an amount of ₹5,00,000/- was given by her father for purchasing a car. It is her 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..17..

further case that during the month of November, 2008, her father- in-law sold 35 sovereigns of her gold ornaments, promising to invest the proceeds in a scheme offered by Navarathna Jewellery. Further, it is claimed that 10 sovereigns of gold ornaments were given to the husband for constructing the foundation of a residential house and 100 sovereigns of gold ornaments for constructing the house. Thus, by utilising the sale amount of the gold ornaments worth 145 sovereigns, the house was constructed. The wife produced Ext.A2 photographs and Ext.A10 marriage album as evidence to corroborate her claim that she had 145 sovereigns of gold ornaments at the time of her marriage. Though the owner of Navarathna Jewellery was examined as PW1 to prove the entrustment of 35 sovereigns of gold ornaments, he testified that no gold ornaments were given to him and no money was deposited. To rebut the wife's contention that 10 sovereigns were given to the husband during August, 2009, for constructing the foundation of the house, the husband produced his passport as Ext.B16, which shows that he came to India only in October, 2009. To prove the claim of gold and money, other than PW1 the jewellery owner, the wife examined PW2, who is the Manager of Catholic Syrian Bank. The wife was examined as PW3.

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17. A perusal of the entire evidence reveals that the husband and his family members did not dispute that the wife owned 145 sovereigns of gold ornaments, nor did they deny that her family had the financial means to purchase such quantity of gold. Moreover, though the wife's contention that ₹5,00,000/- was given to purchase the car was denied by the husband, he has not stated that the wife's family had the capacity to pay the said amount. Ext.X4 Statement of Account produced by the wife discloses cash deposits of ₹8,000/- from 03.12.2008 till 17.09.2009 in the account maintained by the wife, which probabilises the case of the wife that her 35 sovereigns of gold ornaments were given to the father of the husband to deposit in the Navarathna Jewellery. To rebut the contention of entrustment of 10 sovereigns of gold ornaments for the construction of foundation of the residential house, the husband produced his passport as Ext.B16, which shows that he was not in India during August, 2009, but came to India in October 2009. The passport seal on page No.19 of Ext.B16 indicates that he arrived in Kochi on 13.10.2009 and departed from Kochi on 12.11.2009. During cross-examination, he testified that he was not present in India when the foundation work for the house was being done. Hence, according to him, the claim of the wife that 10 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..19..

sovereigns of gold ornaments were entrusted to the husband for construction of the foundation of the house in August 2009 is false and there was no such entrustment in August 2009, since he came to India only in October 2009.

18. The wife/PW3, in page 4 of paragraph 5 in the proof affidavit has sworn to as follows:

"വവ ഹ കഴഞ ഗൾഫ ൽ പ യതന പ ഷ 1-ആ എതകക 2009 ആഗസ മ സതല ണ ന ടപലക വനത. എതകക കൾ എപന ട എന& സ'ർണ ഭരണങൾ ഉ പയ ഗച നന/ ര വ1ട ണയ നമന 2, 3 എതകക കളനട ക ലപ ഷ ട വ1ട സലവ 1-ആ എതകക യനടയ എന&യ പ ര പലക എഴത നവക നമന റഞ വ 'സ പ കകയ 1-ആ എതകക ഗൾഫ ൽ പ കനതന മമ തറ ണ ആര ഭക നമന റയകയ എന& 10 വൻ സ'ർണ ഭരണങൾ 1-ആ എതകക ടസ എന ന ലയൽ കക റ ആയത വറ ലഭച ഒര ലക ര 2-ആ എതകക നയ ഏലകകയണ യ . 1-ആ എതകക ഗൾഫ പലക പ കനതന മൻ തനന തറ ണ ആര ഭകകയണ യ .

During cross-examination, in page no.11, paragraph 15, the wife has testified that husband was in India when the construction began and he left to gulf when the foundation work was over. The husband, during examination, has not stated as to when the foundation work of the house was done. Ext.A12 photographs were produced to show the completion of the foundation work of the house. He admitted that the first birthday of his elder son was celebrated in May 2010 and the photographs were sent to him. The wife relied on Ext.A12 photographs and testified that those photographs were taken during her elder son's first birthday celebration and the completion of 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..20..

the foundation work of the house is seen in the photos. A perusal of Ext.A12 series photographs reveal the birthday celebrations and Ext.A12(a) reveal the completion of the foundation work for the residential building. The elder son was born on 23.05.2009. So, the first birthday was celebrated on 23.05.2010. The month of arrival of the husband as August, stated by the wife, appears to be a mistake. However, as stated by the wife, the foundation for the house was done even before the first birthday of the son. The dates regarding the birth and first birthday of the elder son in the judgment of the family court are not correct. Since Ext.A12 series photographs reveal the construction of the foundation, the date or month of entrustment of 10 sovereigns of gold ornaments is immaterial. The Family Court, on appreciation of evidence, has come to the conclusion that 10 sovereigns of gold ornament were taken by the first respondent for construction of the foundation work of the house. We do not find any reason to interfere with the view taken by the Family Court.

19. Further, regarding the entrustment of 100 sovereigns of gold ornaments, PW3-the wife, testified that by utilising the money after selling her 100 sovereigns of gold ornaments and by utilising the amounts after selling her 35 sovereigns of gold ornaments, the 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..21..

construction of the house was completed. The wife/PW3, in page 4 of paragraph 5 in the proof affidavit has further sworn to as follows:

ടയ ൻ ല1വ ത1ർന നസപറ ബർ മ സതൽ ഗൾഫ പലക തര നക പ വകയണ യ . ന1ട ബ ക വ1ട ണ പർതയ പകണ ആവ Nതപലക യ ണ ആവസNമനണന റഞ 2009 നസപറ ബർ മ സതൽ എന& പ ഷ കന 100 വൻ സ'ർണ ഭരങള 2-ആ എതകക ടസ എന ന ലയൽ വ ങ നയടകകയണ യ . പമൽ പസ വച പക ര എന& സ'ർണ ഭരണങളൽ ന ന 110 വൻ സ'ർണ ഭരണങൾ വറ ക ടയ ണവ നവരത ജ'/റയൽ എന& പ ര ൽ ന പക ക നമന റഞ വ 'സ പ ച വ ങ നയടത 35 വൻ സ'ർണ ഭരണങൾ വറ ലഭച ണവ ഉ പയ ഗച 2, 3 എതകക കൾ ടയ രനട പ ര ലള വഹകളൽ 2090 sq.ft. വസത1ർണമള ഇരന ലനകടട ണതടളത ണ. The husband relied on Exts.B3 to B5 bank account statements to prove that while he was working abroad, money was sent from gulf for construction of the house. The construction of the house was during 2009-10. Ext.B3 statement was for the period from 01.01.2008 to 12.07.2016, Ext.B4 statement is for the period from 08.05.2010 to 07.03.2012 and Ext.B5 statement is for the period from 01.01.2012 to 27.06.2016. During evidence, the Family Court found that the total cost of the construction of the house was more than ₹25,00,000/-. A perusal of Exts.B3, B4, and B5 does not indicate any significant withdrawals during the relevant period that would account for ₹25,00,000. Ext.A3 is the photograph of the said house and on a perusal of the same, it can be concluded that for construction of the house in question, the expense would reasonably have been ₹25,00,000/-. Hence, in all probability, it has to be 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..22..

presumed that the case of the wife that her gold ornaments were sold for construction of the house has to be believed.

20. Next is regarding the wife's claim of ₹5,00,000/- allegedly entrusted by her father on the next day of marriage for purchasing the car. The wife deposed that the husband had revealed that he had many liabilities and would utilize the said amount for clearing the liabilities and is interested to purchase a car by availing loan. It is the case of the husband that a car was purchased even before the marriage. For substantiating the said contention, the husband relied on Ext.B1 registration particulars of the vehicle. On a perusal of the same, it is seen that the car was purchased in the name of husband's father and it was taken delivery on 23.06.2008, i.e., just before the marriage on 13.07.2008. It could be true that the aforesaid ₹5,00,000/- was given by the wife's father for purchase of a car and since the husband's family already purchased a car, they used the said amount for their own needs. While the wife's family was affluent enough to adorn their daughter with 145 sovereigns of gold, it is only probable that ₹5,00,000/- has been given for purchasing a car, is the view taken by the family court. We concur with the afore finding and decline interference with the view taken by the Family 2025:KER:31412 Mat.App.No.110/2017 & RP(FC) No.91/2017 ..23..

Court.

21. As regards the claim of household articles, the Family Court has found that the wife is entitled to get ₹17,750/-. It is a custom prevalent in many parts of the State that household articles are given to the bride during the "adukkala kaanal" function. On the evidence, the Family Court upheld the claim. It could not be substantiated before us that the finding is not sustainable on the basis of the evidence adduced. No interference is called for with regard to the same.

In view of the foregoing discussion, we do not find any reason to interfere with the impugned judgment and decree of the Family Court. Accordingly, the appeal and the revision petition are dismissed.

Sd/-

SATHISH NINAN JUDGE Sd/-

SHOBA ANNAMMA EAPEN JUDGE bka/-

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