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2016 Supreme(Mad) 3824

MADRAS HIGH COURT (DB)
Huluvadi G. Ramesh and S. Vaidyanathan, JJ.
S. Basheria & Ors. - Appellants
Versus
The State of Tamil Nadu, rep. By its Secretary, Home Department, Fort St. George, Secretariat, Chennai & Ors. - Respondents
Writ Appeal No. 715 of 2015
Decided On : 26-10-2016

Advocates Appeared:
For the Appellants :Mr. M.N.S. Mohamed Habeeb Raja, Advocate.
For the Respondents:Mr. P.S. Sivashanmugasundaram, Special Government Pleader, Mr. R. Abdul Mubeen, Advocate.

Headnote:

Constitution of India - Article 226 - Kazis Act - Dissolution of Muslim Marriages Act, 1939 - Section 2 - Petitioner sought to challenge – Muslim Law - 1st appellant, 3rd respondent did not have any regular income and took to drinking – Though father of 1st appellant gave a sum amount to 3rd respondent to commence an individual business, he did not run the business successfully. While so, the 3rd respondent expressed his desire to go to his native place to meet his parents. Though he promised to come back soon, he did not come back and the 1st appellant came to know subsequently that the 3rd respondent had married another woman at his native place and living with her separately – Held, Court is concerned only with the questions of law, but not the questions of fact - Disputed questions of facts have to be dealt with only by the appropriate forum or the Court or the authority, as the case may be and not by this Court. Hence, in court considered opinion, Writ Petition was not maintainable, as the appellants have to work out their remedy only before the appropriate forum or authority under the appropriate law. The learned Single Judge has dealt with the matter in detail and rightly come to the conclusion, dismissing the Writ Petition. Therefore, we do not find any infirmity with the order passed by the learned Single Judge - Writ Appeal is dismissed

JUDGMENT :

S. Vaidyanathan, J.

Being aggrieved by the order dated 12.10.2012 passed by the learned Single Judge in W.P. No. 3151 of 2007, the writ petitioners have come up with this appeal.

2. Brief facts leading to the filing of this Appeal, are, as under:

2.1. The first appellant viz. S. Basheria is the wife of one T.C.A. Mohamed Yusuff, the 3rd respondent herein. The 2nd and 3rd appellants are her daughters and the 4th appellant is her son. The 1st appellant got married with the 3rd respondent herein, a Beef Merchant, on 20.08.1987 as per Islamic customary rites and practise and the marriage was duly recorded in the Nikkah Register of Padi Jumma Masjid. During the initial stage of her married life, she was residing with the 3rd respondent at his native place and subsequently, she shifted her matrimonial residence to Mannurpet, Chennai.

2.2. According to the 1st appellant, the 3rd respondent did not have any regular income and took to drinking. Though the father of the 1st appellant gave a sum of Rs. 1,00,000/- to the 3rd respondent to commence an individual business, he did not run the business successfully. While so, the 3rd respondent expressed his desire to go to his native place at Velambur in Cheyyar Taluk to meet his parents. Though he promised to come back soon, he did not come back and the 1st appellant came to know subsequently that the 3rd respondent had married another woman at his native place and living with her separately.

2.3. Thereafter, when the 1st appellant enquired with the local people, she came to know that the 3rd respondent had obtained an authoritative verdict/Fatwa from the 2nd respondent/Government Chief Kazi, dissolving her marriage with the 3rd respondent by way of showing a Kulanama dated 09.06.2006 alleged to have been written by the 1st appellant. And, only on the basis of the same, the local Jammath people permitted the 3rd respondent to marry another Muslim woman.

2.4. According to the 1st appellant, she had not opted to get divorce from the 3rd respondent and that the letter dated 09.06.2006 alleged to have been signed by her is a forged one. Though the 1st appellant sent a representation to the 2nd respondent on 27.07.2006 asking to intervene on the same, the 2nd respondent informed that he gave his opinion based on the letter of the 3rd respondent and the Khula given by her.

3. When the appellants herein approached this Court in W.P. No. 3151 of 2007 seeking to call for the records of the 2nd respondent in the Khulanama dated 09.06.2006 certified by the 2nd respondent on 27.07.2006 and for a consequential direction to respondents 1 to 6 to pay them a sum of Rs.7,00,000/- as damages, this Court dismissed the said Writ Petition, holding as under:

"19. In the present case, while the petitioner sought to challenge the 'Khula' produced by the third respondent with an endorsement of the second respondent agreeing with the same, that by itself will not give any cause of action. Since the allegation made by the petitioner against the third respondent is one of forgery and that issue is pending consideration before the appropriate Criminal Court. As per the charge sheet produced, the second respondent has not been made as a party and if the petitioner thinks that the second respondent has connived with the third respondent, she can move the learned Magistrate for conducting a further investigation to pinpoint the role of the second respondent. At this stage, seeking for a document which was countersigned by the second respondent to be set aside by this Court will not arise. The documents gathered by the investigation officer are to be put before the Trial Court and should await its assessment. Thereafter, it is always open to the petitioner to seek appropriate compensation against her own husband namely the third respondent or if the petitioner still insists that the second respondent being a statutory authority failed to discharge his duties or that he connived with the third respondent in countersigning





























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