IMPORTANT POINT
Family Courts must conduct summary inquiries into the validity of talaq/khula, treating them as uncontested matters, without requiring counter claims.

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.Si