IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &

THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 14^TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 MAT.APPEAL NO. 404 OF 2023 AGAINST THE ORDER/JUDGMENT OPMMA 194/2022 OF FAMILY COURT, KOTTARAKKARA APPELLANT/RESPONDENT:

MOHSIN NAZIRUDDIN AGED 32 YEARS S/O NAZIRUDEEN, SANA, OPPOSITE L.I.C. BUILDING, ATTINGAL VILLAGE, ATTINGAL.P.O., CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT,, PIN – 695304 BY ADV M.DINESH RESPONDENT/PETITIONER:

RAIHANA.S.

AGED 22 YEARS D/O SIDHEEQ, RAIHANA MANZIL, VALUPACHA, PULLUPANA.P.O., KUMMIL VILLAGE, KOTTARAKKARA TALUK, KOLLAM,, PIN – 691536 THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON

14.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Amit Rawal, J.

1. The present appeal is directed against the judgment and decree dated 13.04.2023 rendered in O.P.(MMA)No.194/2022 whereby the declaration sought by the respondent with regard to the Khulanama pronounced on 11.10.2022 has been declared to be valid and marriage between the parties has been dissolved.

2. The facts succinctly before the Family Court are that the appellant and the respondent – wife contracted a marriage on 05.12.2018 in accordance with the customary rites and ceremonies applicable to Muslim laws and lived together as husband and wife. Out of the wedlock, one girl child was born on 21.10.2019. At the time of marriage, respondent – wife was pursuing for B.A.Degree and intended to pursue M.Tech Graduate and for that was employed in Japan. However, the conduct of the husband was so premature that it was very difficult for her to manage. On 22.01.2020 she was deserted by the husband.

Respondent-wife filed O.P.(MMA)No.44/2020 for dissolution of marriage and in that proceedings, M.C.No.142/2020 for granting maintenance and O.P.(others) 207/2022 for recovery of gold ornaments have been filed, which are pending consideration. Appellant filed O.P.(RCR) No.575/2020 for restitution of conjugal rights before Family Court, Attingal. Counseling and mediation were conducted before Family Court but of no avail. On 11.10.2022, respondent – wife pronounced Khula and send the copy of the same to the appellant. She further averred that she received 140 grams of gold ornaments as Mehar but were in the custody of the husband.

3. Appellant-husband contested the aforementioned petition by filing objection and submitted that Khulanama was not in accordance with the Muslim law and the judgment of this Court in Asbi v. Hashim M.U. (2021 (6) KLT 292 as neither any conciliation proceedings or Mehar as required was ever offered. Since the parties were at variance the Trial Court framed the following issues:

1) Whether the pronouncement of Khula on 11.10.2022 by the petitioner is valid. 2) Relief and costs.

4. Respondent-wife examined herself as PW1 and placed on record Ext.A1 copy of marriage certificate, Ext.A2 copy of Khula, Ext.A3 series are the postal receipts and Ext.A4 series are acknowledgments signed by the respondent wife and both the Jamaths.

5. Appellant - husband examined himself as RW1 and placed on record Ext.B1 copy of reply to the notice and Ext.B2 postal receipt. Learned Family Court on the basis of the pleadings as well as the oral and documentary evidence dissolved the marriage.

6. Learned counsel appearing on behalf of the appellant submitted that learned Family court abdicated in not assigning any reasons with regard to the fact that the Khulanama was not preceded by legal requirements ie., mediation as well as return of Mehar. Even the pendency of other petitions filed for recovery of gold ornaments and maintenance would irresistibly conclude that the Maher given by the husband – appellant is in the custody of wife.

7. This Court had on 09.06.2023 issued notice, service on respondent has been effected, but there is no appearance.

Accordingly, proceed to decide the appeal on merit.

8. We have heard the learned counsel for the appellant and appra