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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.179 OF 2009

Mrs Sabah Adnan Sami Khan,

aged 34 yrs, Occupation-

Business, residing at No.1301, A

& C and Flat No.1401, A,B and

C Oberoi Sky Garden, 3^rd X

Lane, Lokhandwala, Andheri,

Mumbai-400053.

.. Appellant

Vs

Adnan Sami Khan,

aged 39 years, Occupation-

business, residing at No.1301, A

& C and Flat No.1401, A, B and

C Oberoi Sky Garden, 3^rd X

Lane, Lokhandwala , Andheri,

Mumbai-400053.

.. Respondent

Mr Mahesh Jethmalani, Senior Counsel, with Mrs Mrunalini

Deshmukh, Mrs Edith Dey, for the Appellant.

Mr Vaibhav Krishna a/w Mrs Mridula Kadam, Mr Aashish Sah,

Tejas Sha, Vishal Nahar, Laxmi Mardekan, Anvisubade i/b M/s

Juris Consillis, for the respondent.

CORAM : D.B.BHOSALE AND R.Y.GANOO,JJ.

DATE : 23/03/2010.

JUDGMENT : (Per D.B.BHOSALE,J.)

1.

In this appeal under section 19 of the Family Courts Act,

T

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1984, the following questions are raised for our consideration:

(i) Whether a divorce between the appellant and the

respondent under the Divorce Agreement dated 18^th

April, 2004 was a Talak in the `Ahsan mode’, as the

appellant-wife claims, or was it a divorce by `Khula’, as

claimed by the respondent-husband?

(ii)Whether, the appellant was obliged to undergo Halala

prior to her remarriage with the respondent on 5^th April,

2007?

(iii)If the divorce under the Divorce Agreement dated 18^th

April, 2004 is held to be a Talak by Khula, whether the

appellant-wife was obliged to undergo Halala before the

remarriage on 5.4.2007 ?

(iv)Whether the petition filed by the appellant-wife for

divorce and her Miscellaneous Application under the

provisions of the Protection of Women from Domestic

Violence Act, 2005 (for short, “the Domestic Violence Act”)

were tenable before the Family Court?

2.

This appeal was admitted on 14.12.2009 and, on 1.2.2010,

liberty was granted to the appellant to submit private paper

book within a period of six weeks and to apply for fixed date of

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hearing of the appeal. The appellant, along with the appeal,

had filed a Civil Application, being Civil Application No.53 of

2010, for interim reliefs prayed for therein. This civil application

was placed on board on 10.3.2010 for hearing. On this date, we

heard learned counsel for the parties for some time and, in the

course of hearing, they jointly requested to take up the appeal

itself for final disposal.

3.

Learned counsel for the parties addressed the court only

on the aforesaid questions, and all the questions being the

questions of law they fairly stated that evidence for addressing

the questions is not necessary and they would address the court

on the basis of admitted facts and the material placed before us

and that they would not seek remand of the matter for allowing

the parties to lead evidence. In view thereof, we have heard

learned counsel for the parties at considerable length.

4.

The facts, which are relevant to dispose of this appeal, are

fairly simple. The appellant and the respondent are

Mahomedans and they belong to the Sunni Sect. The appellant

is a citizen of UAE and the respondent is a citizen of Pakistan.

They got married on 15.9.2001 according to Islamic rites. At the

time of their marriage, it was the appellant’s third marriage and

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the respondent’s second. Their marriage was dissolved under

the Divorce Agreement dated 18.4.2004 singed by them and the

witnesses. The parties remarried on 5.4.2007 at Jama Masjid,

Bandra, Mumbai, (for short, “the second marriage”). The

second marriage was registered with the Sub Registrar of

Marriages, Bandra, Mumbai on 2.2.2008. Sometime in June-

July,2008, disputes and differences arose between the appellant

and the respondent, which resulted in execution of the

Reconciliation Agreement dated 22.1.2009. Thereaf