A valid Khula exercised by a Muslim wife, if compliant with procedures, is recognized by the Family Court, and injunction against re-marriage post-divorce is unwarranted.

JUDGMENT

[Mat.Appeal No.323/2022, Tr.P.(C) No.321/2022 & O.P.(FC) No.276/2022]

A.Muhamed Mustaque, J.

These matters are between the same parties. We shall refer the parties by name. Aayisha married Ahad Haneefa as per the muslim ceremonies and rites on 13.9.2018. She approached the Family Court, Chavara, in O.P.(MMA) No.950/2019 for a decree of divorce invoking under Section 2 (viii), (a) (d) of the Dissolution of Muslim Marriage Act . On account of delay involved in consideration of the above matter, she approached this Court in O.P.(FC) No.90/2022. This Court,, taking note of the recognition of the extra-judicial divorce permissible to muslim woman invoking Khula as reported inX v. Y [ 2021 (2) KLT 967 ], allowed her to invoke extra-judicial divorce and move the Family Court to record the same. Accordingly, she resorted to Khula and terminated the marriage. She approached the Family Court to record the same in O.P.(MMA) 950/2019. The Family Court after noting that all conditions of the Khula have been fulfilled, recorded the same in O..P(MMA)No.950/2019 as per the judgment dated 11.4.2022 and disposed the above case. Challenging the recording of Khula, Ahad Haneefa approached this Court in Mat.Appeal No.323/2022. In the meanwhile, he also approached the Family Court, Chavara, in O.P(Others).No.113/2022 challenging the extra- judicial divorce invoked by Aayisha. In that, he filed interlocutory applications restraining Aayisha from contracting second marriage on the strength of Khula invoked by her. The Family Court as per the order in the interlocutory application granted interim injunction. Aggrieved by the interim injunction, Ayisha approached this Court in O.P.(FC) No.276/2022. This Court on 20.05.2022, passed the following order:

'Admit.

2. Issue notice to the respondent by speed post.

3. In the matrimonial dispute pending before the Family Court, the wife who is a Muslim woman invoked extra-judicial divorce. In that proceedings, the Family Court recorded the extra-judicial divorce and declared that the parties are no longer husband and wife. After the declaration, the respondent who was the former husband moved a petition before the same Family Court by separate proceedings and obtained an order of ad-interim injunction restraining the petitioner from contracting any other marriage. We are of the prima facie view that the Family Court had not applied its mind before granting such relief.

In such circumstances, we are of the view that the impugned order has to be stayed. Accordingly, it is stayed. We make it clear that on the basis of the stay granted by this Court, the petitioner has no impediment in contracting any other marriage in accordance with law and the Mahal Committee can take note of this order for registering any marriage in accordance with law. Post along with Mat.Appeal No.323/2022.'

2. Thereafter, it is now submitted at the Bar that Aayisha contracted another marriage in accordance with the Muslim ceremonies and rites.

3. Ahad Haneefa also moved this Court in a transfer petition as Transfer Petition (Civil) No.321/2022 to transfer O.P.(Others) No.113/2022 pending before the Family Court, Chavara, to any other Family Court outside Kollam District. This was citing that Aayisha's father is a practising lawyer who is a Bar Association Executive Committee Member in Kollam and he is having acquaintance with the presiding officer of the Family Court, Kollam.

4. The entire matter now revolves around the validity of the decree in O.P.(MMA) No.950/2019. The court, in fact, acknowledges that Khula exercised by Aayisha was valid. The Family Court noted that all the procedures to invoke Khula by Muslim wives have been followed in the matter and declared the marital status. No doubt, the aggrieved person can challenge the same in an appeal pointing out any irregularity about Khula. Having gone through the judgment endorsing the exercise of Khula by Aayisha, we find that there is no irregularity or infirmity in recording the same