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2024 DIGILAW 1093 (KER)

K. H. Abdul Shukoor v. M. M. Zarin

2024-09-02

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

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JUDGMENT : Devan Ramachandran, J. What we propose to say in this judgment is virtually a sequel to the declarations of law by another learned Division Bench of this Court in Asbi.K.N. v. Hashim M.U. [ 2022 (6) KHC 159 ]. This is because, even though, in Asbi K.N. (supra), this Court has held that the enquiry to be conducted by a Family Court - as to if the pronouncement of talaq/khula/ talaq-e-tafweez was made validly - shall be the nature of an uncontested matter, and being summary in nature, it is argued by the petitioner herein that, even in such a course, he is entitled to file a written statement, as also to maintain a counter claim against such motion. 2. We are, however, of the view that the afore contention is untenable, and we will record our reasons presently. 3. The respondent filed O.P.No.1527/2023 before the learned Family Court, Irinjalakkuda, for a declaration that the ‘khula’ she pronounced against the petitioner be declared valid. 4. The petitioner, thereupon, filed an application to allow him to prefer a counter affidavit, as also to maintain a counter claim; and on the assertion that it is unlikely to be considered by the learned Family Court, he approached this Court and obtained Ext.P5 judgment. He says that, in spite of the specific directions in Ext.P5, the impugned Ext.P6 order has been issued by the learned Family Court, rejecting his application and thus dis-entitling him not only to maintain a counter claim, but also to prefer a counter statement to the Original Petition. The petitioner thus prays that Ext.P6 be set aside. 5. Smt.M.Shajna – learned counsel for the petitioner, vehemently argued that Ext.P6 is untenable because, it has virtually disentitled her client to oppose the ‘‘khula’’; and that the reliance placed by the said Court on the judgment of this Court in Asbi K.N. (supra) is totally misplaced in such perspective. She argued that, when her client has a specific case that the ‘khula’ is not valid on account of various factors – including that there was no proper attempt of mediation between the parties and that the respondent is acting on the influence of others, without being cognizant of its implication – he ought to have been afforded an opportunity of contesting it, which has now been wholly denied through Ext.P6. She concluded her submissions predicating that, even though, in Asbi K.N. (supra), a learned Bench of this Court has made it limpid that the statements of the parties ought to be taken and that the Family Courts must ascertain whether there was a valid pronouncement of talaq/khula/talaq-e-tafweez, this has been refused to be done in this case; and that the learned Court is now proposing to deliver judgment, after having issued Ext.P6 order. She thus reiteratingly prayed that Ext.P6 be set aside. 6. However, in response, Sri.Siraj Karoly – learned counsel for the respondent, submitted that the afore assertions made against his client are all untrue and that she has pronounced the ‘khula’ with full volition, being fully cognizant of its implications. He argued that, when Asbi K.N. (supra) has declared the law that the enquiry to be conducted by the learned Family Court shall be summary in nature, treating it as an uncontested matter, the attempt of the petitioner to expand it, by filing a counter statement, and then attempting to maintain a counter claim, is questionable and impermissible. He thus prayed that Ext.P6 be left uninterdicted. 7. We have considered the afore rival contentions and have examined them on the touchstone of the impugned Ext.P6 order. 8. The facts are not in dispute and both sides agree that the Original Petition was filed by the respondent before the learned Family Court, seeking declaration of the ‘khula’ pronounced by her. 9. The specific case of the petitioner is that the ‘khula’ is not valid and he attempted to establish it, filing a counter statement, as also by maintaining a counter claim to the effect that the same is illegal. 10. As rightly argued by Sri.Siraj Karoly, in Asbi K.N. (supra), this Court has rendered it beyond contest that, in matters like this, Family Courts are enjoined to conduct an enquiry, but which shall be summary in nature, treating it as an uncontested matter. 11. Ineluctably, therefore, even if a counter statement is filed by the petitioner or otherwise, the learned Family Court is obligated in law and by the declarations of this Court, to conduct an enquiry, after obtaining the statements of the parties. 11. Ineluctably, therefore, even if a counter statement is filed by the petitioner or otherwise, the learned Family Court is obligated in law and by the declarations of this Court, to conduct an enquiry, after obtaining the statements of the parties. This burden is fortified by the specific mandate in Asbi K.N (supra), that the learned Family Court shall ascertain whether there was a valid pronouncement of talaq/khula/talaq-e-tafweez, as also whether the parties have executed and signed the ‘mubaarat’ agreement, if it involves such. 12. Luculently, hence, it does not even require the petitioner to file a counter statement, much less to maintain a counter claim, for the learned Family Court to act as afore, because it is the inviolable duty cast upon it. 13. Furthermore, in Asbi.K.N. (supra), the Division Bench has spoken about ‘khula’, along with ‘talaq’ and ‘talaq-e-tafweez’, as being ‘unilateral extrajudicial divorce under Muslim Personal Law’, thereby, dispelling any doubt as to its real ambit. It is precisely, therefore, that, in the said judgment, liberties have been reserved to the parties to invoke remedies against such extrajudicial divorce ‘in accordance with law, in appropriate forum’. 14. In such perspective also, it will be rather tenuous to even suggest that the procedure to be followed before the learned Family Courts, with respect to declaration of validity of such ‘extrajudicial divorce’, be subject to the detailed processes under the Civil Law. 15. In any event, as we have already indited above, it has been declared in Asbi K.N. (supra), leaving no room for doubt, that the enquiry to be conducted by the Family Court shall be summary in nature, as an uncontested manner. 16. That being so said, the singular allegation of the petitioner – that the learned Family Court is not even taking statement of parties – cannot appeal to us because, we cannot believe so, it being a legal obligation cast upon it, as we have already mentioned above. 17. In such scenario, we do not think it necessary for the petitioner to have filed a counter statement, much less to have maintained a counter claim because, even in its absence, the duty of the learned Trial Court has been declared to make an enquiry as to whether there was a valid pronouncement of talaq/khula/talaq-e-tafweez and whether the parties have executed the ‘mubaarat’ agreement. This can be done only after the statements of the parties are obtained and are analyzed by the learned Trial Court, with respect to the criteria as are well established, for declaring the validity of the ‘khula’. 18. After we dictated this part of this judgment, Smt.M.Shajna made a further argument that, in Asbi K.N. (supra), the learned Division Bench has also postulated that, if any of the parties wants to challenge the ‘extra-judicial divorce by talaq/khula/talaq-e-tafweez’, he/she is free to challenge the same in accordance with law before the appropriate Forum’. She argued that this renders that her client can challenge the ‘khula’ by filing a counter claim. 19. We are afraid that we cannot find favour with this argument either because, immediately after the afore liberty was reserved to the parties by the learned Division Bench, it proceeded to unequivocally hold that ‘the declaration granted by the learned Family Court under Section 7D, endorsing the extra-judicial divorce, shall be subject to the final outcome of such proceedings if any’. Luculently, this means that, if the learned Family Court is to allow the Original Petition, then the right of the other side to challenge the divorce before the appropriate jurisdictional Forum is reserved; and that the same shall be subject to such proceedings. This cannot mean that the reserving of a right, as stated by Smt.M.Shajna, is in the proceedings before the learned Family Court itself because, if it is to be construed so, the further direction in the said judgment – that the enquiry must be conducted in a summary manner, treating it as an uncontested matter – would be reduced to incongruity. 20. In the afore circumstances, though we do not deem it necessary to intervene with Ext.P6, it is necessary for us to ensure that the learned Family Court acts as per law, after affording necessary opportunities to both sides. For this, we are without doubt that the learned Family Court must conduct itself as per direction No.3 in Asbi K.N (supra), namely to allow the parties to offer their statements supporting and opposing the ‘‘khula’’ – as the case may be; and then to ascertain whether the pronouncement was valid. This cannot be watered down in any manner, though the proceedings shall be summary in nature, as an uncontested matter. This cannot be watered down in any manner, though the proceedings shall be summary in nature, as an uncontested matter. In the afore circumstances, we close this Original Petition, without acceding to the challenge to Ext.P6; however, directing the learned Family Court to act specifically in terms of Asbi K.N. (supra). We have listed this matter again today because, after we delivered judgment yesterday, a request was made on behalf of the petitioner that the parties be allowed to attempt a mediation, reiteratingly alleging that the ‘khula’ was pronounced by the respondent under the influence of others. 2. However, today, the respondent, along with her two major sons, appeared before us in person and unequivocally expressed her resolve to obtain divorce, saying that she cannot live with the petitioner any further on account of very bitter past experiences. She graphically described the trauma which she says she endured; but which we propose not to indite in this judgment because we are fully aware that the petitioner has further remedies as reserved to him in Asbi K.N. (supra). In such circumstances, we see no reasons to modify our judgment.