FARHANA vs NOUFAL.P.P - 2021 Supreme(Online)(KER) 27876

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2021 Supreme(Online)(KER) 27876

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
Mat.Appeal.No.89 OF 2020

APPELLANT/S:
xxxxxxxxxx
BY ADVS.
SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SHRI.P.U.VINOD KUMAR
SRI.AVINASH P RAVEENDRAN
SMT.ARYA RAGHUNATH
SMT.SNEHA SUKUMARAN MULLAKKAL
SRI.SHELLY PAUL
RESPONDENT/S:
xxxxxxxxxx
R1 BY ADV. SRI.P.NARAYANAN
R1 BY ADV. SMT.P.SHEEBA
OTHER PRESENT:
ADV.K.I.MAYANKUTTY MATHER(AMICUS CURIAE,
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2021,
Mat.Appeal.72/2021, OP (FC).372/2020, OP (FC).124/2021, OP
(FC).133/2021, THE COURT ON 09.04.2021 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
Mat.Appeal.No.72 OF 2021
AGAINST THE ORDER/JUDGMENT IN OP.NO. 300/2019 DATED 24-12-2019
OF FAMILY COURT, KALPETTA
APPELLANT/S:
MUHAMMAD MUSTHAFA B.K @ BILAL MUSTHAFA,
AGED

41

YEARS,

S/O.BADUVAN

KUNHI

HAJI,
BILAL MAHAL, ARIKKADIKUNNIL, KUMBALA P.O.,
KASARGODE DISTRICT, PIN - 671 321.
BY ADV. SMT.ATHIRA A.MENON
RESPONDENT/S:
HARSHA M.A.
AGED 30 YEARS
W/O.MUHAMMAD MUSTHAFA B.K. @ BILAL MUSTHAFA,
D/O.AHAMMED KABEER, POOKKANDI HOUSE, CHENDAKKUNI,
MEENANGADI P.O., PURAKKADI VILLAGE, VYTHIRI TALUK,
WAYANAD DISTRICT - 673 576.
R1 BY ADV. SMT.RESMI NANDANAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2021,
Mat.Appeal.89/2020, OP (FC).372/2020, OP (FC).124/2021, OP
(FC).133/2021, THE COURT ON 09.04.2021 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
OP (FC).No.372 OF 2020
AGAINST THE ORDER/JUDGMENT IN O.P.NO.286/2020 OF FAMILY COURT,
MALAPPURAM
PETITIONER/S:
FARHANA, AGED 27 YEARS,
D/O.MANSOOR,

PUTHIYEDATHU

HOUSE,
VAZHAKKADU P.O., MALAPPURAM-673 640.
BY ADV. SRI.R.RANJITH (MANJERI)
RESPONDENT/S:
NOUFAL.P.P., AGED 34 YEARS,
S/O.MUHAMMED, PUDUKAYIL PUTHIYA MALIKEKKAL HOUSE,
KATTACHIRA ROAD, B.P ANGADI, THIRUR TALUK,
MALAPPURAM DISTRICT-676 102.
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17.03.2021,
ALONG

WITH

Mat.Appeal.89/2020,

Mat.Appeal.72/2021,

OP
(FC).124/2021, OP (FC).133/2021, THE COURT ON 09.04.2021
DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
OP (FC).No.124 OF 2021
AGAINST THE ORDER DATED 23.12.2020 REJECTING THE ORIGINAL
PETITION BY THE FAMILY COURT, ERNAKULAM IN UNNUMBERED O.P. FOR
DIVORCE BY MUTUAL CONSENT
------
PETITIONER/S:
RASEENA PAREEKUNJU,
AGED 29 YEARS, D/O. P. I. PAREEKUNJU,
PULIMOOTTIL

HOUSE,

KUMARAPURAM,

PALLIKKARA,
ERNAKULAM DISTRICT.
BY ADV. SMT.V.K.HEMA
RESPONDENT/S:
MUHAMMED ASIF, AGED 33 YEARS,
S/O. A. K. HUSSAIN, MUKRIYAKATHU HOUSE,
VADANAPPILLI P.O., THRISSUR DISTRICT.
BY ADV. SMT.P.YEMUNA
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17.03.2021,
Mat.Appeal.72/2021, MAT.APPEAL 89/2020, OP (FC).372/2020, OP
(FC).133/2021, THE COURT ON 09.04.2021 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
OP (FC).No.133 OF 2021
PETITIONER/S:
RASEENA PAREEKUNJU,
AGED 29 YEARS,
D/O.

P.I.PAREEKUNJU,

PULIMOOTTIL

HOUSE,
KUMARAPURAM, PALLIKKARA, ERNAKULAM DISTRICT.
BY ADV. SMT.V.K.HEMA
RESPONDENT/S:
MUHAMMED ASIF, AGED 33 YEARS
S/O.

A.K.HUSSAIN,

MUKRIYAKATHU

HOUSE,
VADANAPPILLI

P.O.,

THRISSUR

DISTRICT,
PIN-680614.
R1 BY ADV. SMT.P.YEMUNA
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17.03.2021,
Mat.Appeal.72/2021, MAT.APPEAL 89/2020, OP (FC).372/2020, OP
(FC).124/2021, THE COURT ON 09.04.2021 DELIVERED THE FOLLOWING:
A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
-------------------------------------- “CR”
Mat. Appeal Nos. 89/2020, 72/2021
&
O.P.(FC).Nos.372/2020, 124/2021 & 133/2021 &
--------------------------------------
Dated this the 9th day of April, 2021

JUDGEMENT

A.Muhamed Mustaque , J. INTRODUCTION: Have Muslim women lost their right to invoke extra-judicial divorce, after the coming into force of the Dissolution of Muslim Marriages Act, 1939 is the short and straight forward question rising for consideration in these cases.

2. These bunch of cases arise out of different proceedings before the Family Courts seeking varied reliefs. The issue involved in as above is inextricably connected to ultimate justice which women involved in all these cases seek. These cases speak in abundance about the patriarchal mind-set followed in Mat. Appeal Nos. 89/2020, 72/2021 & O.P.(FC).Nos.372/2020, 124/2021 & 133/2021 the Society for decades depriving Muslim women their right to invoke extra-judicial divorce. While there was a huge clamour to retain the practice of ‘triple talaq’, an un-Islamic practice; no such open and apparent demand seems to exist to restore the right of Muslim women to invoke extra-judicial divorce. The above sketch the miseries of women despite the promise guaranteed under Article 14 of the Constitution of India.

3.Islam lays great emphasis on the stability of family. According to the Holy Quran(1) “God did create you from dust” then from sperm drop, then he made you in pairs [Surah (Chapter) XXXV Verse 11]. God's declaration that men and women are created in pairs is repeatedly stated in several verses to acknowledge the spirit of marriage. They are made as a mate to find comfort and purify their inner soul. It is also stated that male and female together make a single self, which In the judgment, translation of Quaranic verses are from The Meaning of The Glorious Qur'an – An explanatory translation by Marmaduke Pickthall Mat. Appeal Nos. 89/2020, 72/2021 & O.P.(FC).Nos.372/2020, 124/2021 & 133/2021 symbolises raiment. Chapter II Verse 187 Quran states:

‘you are raiment for her and she is raiment for you’, which highlights the closeness of a mate, like cloth;

for protection and comfort etc. The spirit of marriage lies in the closeness and bonding between the partners.

4. Chapter IV Verse 28 Quran states that man was created weak, to mean that his decisions are vulnerable. The very concept of institutionalizing marriage in Islam through a contract is to remind that the parties to the marriage may error in their decision and they may fall apart in conflict to remain as united. Marriage as a contract guarantees both parties permanent rights and obligations. The Holy Quran, therefore, recognizes the right to divorce equally for both men and women. However, the dilemma of Muslim women, particularly in the State of Kerala, came into the fore when a learned Single Judge of this Court in K.C.Moyin v. Nafeesa & Others [1972 KLT 785] negated the right of Muslim women to invoke extra-judicial divorce in light of the Dissolution of Muslim Marriages Mat. Appeal Nos. 89/2020, 72/2021 & O.P.(FC).Nos.372/2020, 124/2021 & 133/2021 Act, 1939, (in short ‘Act”). It is held that under no circumstances, a muslim marriage cannot be dissolved at the instance of wife, except in accordance with the provisions of the Act.

5. Muslim Personal Law is broadly understood as Shariah. The word Shariah literally means “a way to the watering place, or a path apparently to seek felicity and salvation2. In Chapter XLV Verse 18 Quran says: “Thus we put you on the right way of religion.

So follow it and follow not the whimsical desire of those who have no knowledge”. Shariah primarily and predominantly relates to ethical values essential for both worlds. Quran by itself did not promote straight forward code of law. Many legal rules become part of Shariah from the life and sayings of the last Prophet Muhammad (This is called Hadith). After the demise of the Prophet, Islamic scholars and jurists developed Rules through legal reasoning (Ijtihad) and using legal verdict

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