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2025 Supreme(Online)(KER) 11314
HIGH COURT OF KERALA
Devan Ramachandran, M.B. SNEHALATHA, JJ
MANSOOR ALI P.M. – Appellant
Versus
SOFIYA A.M. – Respondent
OP (FC) 684/2024
A.PARVATHI MENON, P.SANJAY, BIJU MEENATTOOR, P.K.MURALYKRISHNAN, PAUL VARGHESE (PALLATH), KIRAN NARAYANAN, RAHUL RAJ P., MUHAMMED BILAL.V.A, MEERA R. MENON, DEVIKA S. PRASAD, K.A.SALIL NARAYANAN
Endorsement of Talaq requires resolution of factual disputes, necessitating a trial rather than a summary procedure.
Headnote:(A) Family Courts Act, 1984 - Section 7 - Muslim Women (Protection of Rights on Divorce) Act, 1986 - Validity of Talaq and its endorsement - The wife sought endorsement of Talaq pronounced by husband, opposed by him citing invalidation due to subsequent conduct - The Family Court's order rejecting cross-examination is challenged - Court found significant factual disputes, rendering the case adversarial rather than a simple endorsement of Talaq. (Paras 2-19)
(B) Procedure in Talaq endorsement cases - The court emphasized that the procedure for endorsement of Talaq, as outlined in Asbi K.N. v Hashim M.U., applies only when there are no factual disputes, which is not the case here. (Paras 4, 7, 19)
Facts of the case:
The respondent wife sought to endorse a Talaq pronounced by the petitioner husband, who claimed the Talaq was invalidated by their continued cohabitation and physical relationship. The petitioner sought cross-examination of the respondent, which was denied by the Family Court.
Findings of Court:
The court ruled that the case involves significant factual disputes, making it adversarial, and allowed cross-examination.
Issues: Whether the Original Petition for endorsement of Talaq is amenable to summary disposal or requires a trial due to factual disputes.
Ratio Decidendi: The court held that endorsement of Talaq cannot proceed as a simple matter when there are genuine factual disputes, necessitating a trial.
Result: Original Petition allowed; Family Court directed to treat the case as adversarial.
JUDGMENT
Devan Ramachandran, J.
This case initially presented to us as being quotidian in nature, with the respondent apparently seeking divorce from the petitioner; and for a declaration of the marital status of the parties.
2. However, quickly the colour of the litigation changed, presenting varying complexities, when we noticed that the facts involved are rather unusual. This is because, unlike in usual cases where validation of a declaration of Talaq and its endorsement is sought for by the husband, it is the wife, in this case, who seeks it, but with the husband opposing it.
3. Interestingly, it is without contest that it was the respondent - wife, who filed O.P.No.1470/2023 seeking endorsement of the Talaq pronounced by the petitioner – husband, and consequently, for the declaration of divorce between them; but which is vehemently opposed by the petitioner, asserting that, even though he had pronounced Talaq more than six years earlier to the filing of the Original Petition, the same had been invalidated by the subsequent conduct of the parties, particularly - that of the respondent.
4. The proximate controversy in this case revolves around the validity of Ext.P10 order of the learned Family Court, Kozhikode which rejected an application filed by the petitioner, namely Ext.P9, seeking an opportunity to cross examine the respondent. The learned Court relied upon Asbi K.N. v Hashim M.U. [2021 (6) KHC 159] to hold that
“in a proceeding for endorsing an extrajudicial divorce like talaq, khula or mubaarat, a detailed enquiry as in the case of an adversarial litigation like chief examination and cross- examination of the parties are not at all contemplated”.
(sic)
5. This order has been now challenged by the petitioner through this Original Petition.
6. While the petitioner maintains that, going by the nature of the disputes between the parties - both factual and legal - the Original Petition cannot be disposed of in terms of the declarations of this Court in Asbi.K.N. (supra); the respondent adopts a contra- position that, since she has only sought the endorsement of the talaq pronounced by the former, the procedure as enunciated by this Court in the said judgment will have to be expressly followed; thus that he cannot seek her cross examination.
7. Perspicuously therefore, the sole aspect for our consideration - as is also admitted by learned counsel on both sides - is whether the Original Petition in question, is amenable to disposal as per the declarations in Asbi.K.N. (supra) or otherwise.
8. Smt.Parvathy Menon, appearing for the petitioner, submitted that Asbi.K.N. (supra) would come to play only in the cases where the person pronouncing the Talaq seeks its endorsement, and consequently for declaration of the marital status of the parties. She added that, even if it be accepted - without conceding - that even a wife can seek the endorsement of Talaq pronounced by the husband, a summary procedure for such as per Asbi (supra) can be adopted only if there are no factual disputations between the parties.
9. Smt.Parvathy Menon then argued that, in this case, it is the specific assertion of her client that, though he had intimated the petitioner through a letter dated 14.11.2016 of his pronouncement of Talaq, she had refused to accept it; and in fact, issued Ext.P2 reply on 19.11.2016 stating affirmatively that they had lived as husband and wife until 12.11.2016; and that they also had physical relationship. She pointed out that this is the same stand taken by the respondent in M.C.1/2017 - which was filed by her against the petitioner, under the provisions of the Domestic Violence Act - in which, she averred without equivocation that, though she received the letter from the petitioner stating that he had pronounced talaq, it cannot be considered to be valid in law because, even during the three dates mentioned therein - being the ones on which the first, second and the third talaq had been pronounced - they had lived together as husban
