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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.MUHAMED MUSTAQUE, KAUSER EDAPPAGATH, JJ.
Asbi.K.N, D/o Nasser K.P. – Appellant
Versus
Hashim.M.U, S/o Ummerkhan M.A. @ Ummer – Respondent
OP (FC) NO. 476 of 2021
Decided on : 12-10-2021
Family Courts Act, 1984 - 7(d) - Divorce - Muslim law – Talaq – validity of - Petitioner disputed legal validity of pronouncement of talaq and filed at Family Court, for restitution of conjugal rights.- Thereafter respondent filed original petition at Court below as to declare marital status of petitioner and respondent on ground that marriage has been dissolved by pronouncement of talaq - Petitioner appeared at Court below on - Court below adjourned original petition to - Respondent filed to advance hear case and it was advanced to - On that day, case was adjourned for cross-examination and it was taken for judgment to - It was at that juncture petitioner preferred above original petition contending that she was not given proper opportunity by Court below to contest original petition on merits - Whether a valid pronouncement/declaration of talaq or khula was made and it was preceded by effective attempt of conciliation.
Finding of the Court:
Court is prima facie satisfied that there was valid pronouncement of talaq/khula/talaq-e-tafweez, it shall endorse same and declare status of parties. - In case of mubaarat, if Court is prima facie satisfied that mubaarat agreement has been executed and signed by both parties, it shall endorse same and declare status of parties - Court shall pass formal order declaring marital status without any delay. If any of parties want to challenge extrajudicial divorce by talaq, khula, mubaarat or talaq-e-tafweez mode, he/she is free to challenge same in accordance with law in appropriate forum - Declaration granted by Family Court u/s 7(d) endorsing extrajudicial divorce shall be subject to final outcome of such proceedings, if any – Court Consider it desirable to formulate following guidelines to be followed by Family Court in a petition filed u/s 7(d) of Act to endorse an extrajudicial divorce under Muslim Personal Law and to declare marital status of parties to marriage.
Result: Petition Disposed
Based on the provided legal document, the key legal principles and procedures regarding extrajudicial divorce under Muslim Personal Law, as interpreted by the Family Court, are as follows:
Completion of Unilateral Extrajudicial Divorce: A unilateral extrajudicial divorce, such as talaq, talaq-e-tafweez, or khula, is considered complete when the pronouncement or declaration is made in accordance with Muslim Personal Law (!) (!) .
Validity of Divorce Modes:
Mubaarat (mutual agreement) is valid when both parties have executed and signed the agreement, and the Court can endorse and declare the marital status based on this (!) (!) (!) .
Role of the Family Court:
The Court's inquiry is limited to a summary process, where it verifies the existence of a valid pronouncement or agreement, based on the recitals and statements of the parties (!) (!) (!) .
Procedure:
The proceedings are summary and should be completed within one month, with provisions for video conferencing if a party cannot appear in person (!) (!) .
Challenging the Divorce:
Any party wishing to contest the extrajudicial divorce can do so through appropriate legal channels; the Family Court's endorsement is subject to the final outcome of such proceedings (!) (!) .
Final Orders:
The Court is directed to record the statement of the parties and pass final orders promptly, ensuring the marital status is officially declared (!) .
Additional Guidance:
This summary encapsulates the legal approach and procedural guidelines for the Family Court in endorsing extrajudicial divorce declarations under Muslim Personal Law as outlined in the judgment.
JUDGMENT :
Kauser Edappagath, J.
The scope and nature of enquiry to be undertaken by the Family Court in a petition filed u/s 7(d) of the Family Courts Act, 1984 (for short, 'the Act') to endorse an extrajudicial divorce under the Muslim Personal Law and to declare the marital status of the parties to the marriage has arisen for consideration in this original petition.
2. The petitioner was the wife of the respondent. The parties are Muslims. Their marriage was solemnized on 4/5/2015. A girl child was born in the wedlock on 10/2/2018. The respondent divorced the petitioner by pronouncing talaq. The pleadings would show the pronouncement of talaq was in accordance with Muslim Personal Law. The third pronouncement was made on 28/12/2019. It was communicated to the petitioner by registered post. The petitioner disputed the legal validity of the pronouncement of talaq and filed OP No.913/2019 at the Family Court, Muvattupuzha (for short, 'the Court below') for restitution of conjugal rights. Thereafter the respondent filed original petition at the Court below as OP No.387/2021 to declare the marital status of the petitioner and the respondent on the ground that the marriage has been dissolved by pronouncement of talaq. The petitioner appeared at the Court below on 13/9/2021. The court below adjourned the original petition to 10/11/2021. The respondent filed IA No.6/2021 to advance hear the case and it was advanced to 25/9/2021. On that day, the case was adjourned for cross-examination to 28/9/2021 and it was taken for judgment to 30/9/2021. It was at that juncture the petitioner preferred the above original petition contending that she was not given proper opportunity by the Court below to contest the original petition on merits.
3. We have heard Sri.C.Dilip, the learned counsel for the petitioner and the Sri.Alexander Joseph, the learned counsel for the respondent.
4. The Division Bench of this Court in X and Others v. Y and Others (2021 (2) KHC 709) has held that the Family Court in exercise of the jurisdiction under Explanation (d) of S.7 of the Act is competent to endorse an extrajudicial divorce to declare the marital status of a person. It was made clear in the said judgment that in the matter of unilateral dissolution of marriage invoking khula and talaq, the scope of enquiry before the Family Court is limited and in such proceedings, the Court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. In the matter of mubaraat, the Family Court shall declare the marital status without further enquiry on being satisfied that the dissolution was effected on mutual consent. It was observed that such matter shall be disposed treating it as uncontested matter without any delay by passing a formal order declaring the marital status. It was further held that if any person wants to contest the effectiveness of khula or talaq, it is open for such person to contest the same in appropriate manner known under the law.
5. The unilateral extrajudicial divorce under Muslim Personal law is complete when either of the spouse pronounce/declare talaq, talaq-e-tafweez or khula, as the case may be, in accordance with Muslim Personal Law. So also extrajudicial divorce by mubaarat mode is complete as and when both spouses enter into mutual agreement. The seal of the Court is not necessary to the validity of any of these modes of extra judicial divorce. The endorsement of extrajudicial divorce and consequential declaration of the status of the parties by the Family Court invoking S.7(d) of the Act is contemplated only to have a public record of the extrajudicial divorce. Hence, detailed enquiry is neither essential nor desirable in a proceeding initiated by either of the parties to endorse an extrajudicial divorce and to declare the marital status. The Family Court has to simply ascertain whether a valid pronouncement/declaration of talaq or khula was made and it was preceded by effective attempt of co
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