IMPORTANT POINT
The court established that agreements made under Islamic law regarding property rights in divorce are enforceable, and the Family Court has jurisdiction over such matters.

JUDGMENT :

Krishna S. Dixit, J.

This appeal arises from the judgment and decree dated 12.11.2014 entered by the learned Family Court Judge, Belagavi in respondent’s suit in OS No.7/2012, the operative portion of which reads as under :

“Suit of the plaintiff is decreed as under.

It is hereby declared that the plaintiff has got 1/4th share in the suit schedule property mentioned in para-1 of the plaint.

Plaintiff is entitled for 1/4th share in the suit house property by way of partition as per Sec.24 of CPC.

It is hereby permanently restrained the defendant from alienating the suit property.

No order as to costs.

Draw preliminary decree accordingly.”

2. Brief facts of the case :

(a) The parties are Sunni Muslims. They got their marital tie disrupted by virtue of Khulanama dated 6.4.2008 at Ex.P3. It is the case of plaintiff/wife that in terms of this Khulanama, the appellant/husband had agreed to give 1/4th share in the house property bearing CTS No.4817/52/HB fully described in the suit schedule. Some dispute as to this property having propped up, the respondent/wife had filed the subject suit seeking a decree for declaration as to her 1/4th share in the said property and a decree of partition of this share. In addition, she had also prayed for the grant of a decree for restraining alienation of the said property.

(b) The appellant being the defendant entered appearance through his counsel and filed his Written Statement resisting the suit claim, inter-alia, contending that the law relating to Khulanama contemplates consideration being given by the wife to the husband and not the reverse of it; wife having taken up money in lieu of 1/4th share in the subject property has given up her claim over the same, as is evidenced by her affidavit dated 6.4.2008. Suit of the kind was not maintainable in its present form and substance.

(c) On the basis of pleadings of the parties and the documents accompanying the same, learned Family Court Judge framed the following six principal issues for consideration:-

(1) Whether the plaintiff proves that she is the absolute owner of 1/4th share in the suit schedule property on the basis of Khulanam dated 6.4.2008?

(2) Whether the plaintiff is entitled for partition and separate possession of 1/4th share in the suit schedule property?

(3) Whether this Court has no jurisdiction to entertain the suit?

(4) Whether the suit in the present form before this Court is not maintainable as contended by the defendants 1 and 2?

(5) Whether the plaintiff is entitled for the relief of declaration as sought for?

(6) Whether the plaintiff is entitled for the relief of permanent injunction as sought for?

(d) To prove her case, the plaintiff got herself examined as PW1; her brother one Mr. Babu had deposed as PW2. In their deposition, six documents came to be marked as Ex.P1 to P6. They inter-alia comprised of Sale Deed, Property Register, Khulanama, etc. From the side of the defendants, the appellant himself got examined as RW1 and no documents were produced from his side. The learned Family Court Judge having adverted to the pleadings of parties and weighed the evidentiary material placed on record has entered the impugned judgment & decree that are put in challenge in this appeal at our hands.

3. Having heard the learned counsel for the parties and having perused the appeal papers along with the original TCR, we decline to grant indulgence in the matter for the following reasons :

(a) The first submission of learned counsel appearing for the appellant that, in Islamic Law where the marriage is dissolved by khula, it is the wife, who has to give consideration to the husband and not the reverse, is difficult to countenance as a thumb rule and reasons for this are not far to seek: firstly it is not a case of khula as such but a mixed case of mubara’at & Khula. Asaf A.A. Fyzee’s OUTLINES OF MUHAMMADAN LAW, [5th Edition at page 129 says]:

“…In the case of khula the wife begs to be released and the husband agrees for a certain consideration w