Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., issued detailed guidelines for Family Courts for speedy disposal of petitions seeking the judicial endorsement of extra-judicial divorce.
The unilateral extrajudicial divorce under Muslim Personal law is complete when either of the spouse pronounce/declare talaq, talaq-e-tafweez or khula, as the case may be, in accordance with Muslim Personal Law. So also extrajudicial divorce by mubaarat mode is complete as and when both spouses enter into mutual agreement. The seal of the Court is not necessary to the validity of any of these modes of extra judicial divorce.
The instant petition questions the scope and nature of enquiry to be undertaken by the Family Court in a petition filed u/s 7(d) of the Family Courts Act, 1984 to endorse an extrajudicial divorce under the Muslim Personal Law and to declare the marital status of the parties to the marriage.
The petitioner was the wife of the respondent, and both the parties were Muslims. The respondent divorced the petitioner by pronouncing talaq in accordance with Muslim Personal Law. However, the petitioner disputed the legal validity of the pronouncement of talaq and filed a petition in the Family Court for restitution of conjugal rights.
Thereafter the respondent filed original petition at the Court below to declare the marital status of the petitioner and the respondent on the ground that the marriage had been dissolved by pronouncement of talaq. The petitioner appeared at the Court below on 13-09-2021. The court below adjourned the case to 10-11-2021. However, due to application filed by the respondent to advance hear the case and it was advanced to 25-09-2021 and was later adjourned to 28-09-2021. The case was taken for judgment to 30-09-2021. The grievance of the petitioner was that she was not given proper opportunity by the Court below to contest the original petition on merits.
Reliance was placed by the Court on the decision in X v. Y, 2021 (2) KHC 709 wherein it had been held that the Family Court in exercise of the jurisdiction under Explanation (d) of S.7 of the Act is competent to endorse an extrajudicial divorce to declare the marital status of a person. It was made clear in the said judgment that in the matter of unilateral dissolution of marriage invoking khula and talaq, the scope of enquiry before the Family Court is limited and in such proceedings, the Court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. In the matter of mubaraat, the Family Court shall declare the marital status without further enquiry on being satisfied that the dissolution was affected on mutual consent. It was observed that such matter shall be disposed treating it as uncontested matter without any delay by passing a formal order declaring the marital status. It was further held that if any person wants to contest the effectiveness of khula or talaq, it is open for such person to contest the same in appropriate manner known under the law.
In the above backdrop, the Bench stated,
The endorsement of extrajudicial divorce and consequential declaration of the status of the parties by the Family Court invoking S.7(d) of the Act is contemplated only to have a public record of the extrajudicial divorce. Hence, detailed enquiry is neither essential nor desirable in a proceeding initiated by either of the parties to endorse an extrajudicial divorce and to declare the marital status.
Therefore, the Bench held that the Family Court has to simply ascertain whether a valid pronouncement/declaration of talaq or khula was made and it was preceded by effective attempt of conciliation. In the case of khula, it has to be further ascertained whether there was an offer by the wife to return the “dower”. No further enquiry as in the case of an adversarial litigation like chief examination and cross-examination of the parties are not at all contemplated in such proceedings.
In the light of above, the Bench proceeded to formulate the following guidelines to be followed by the Family Court in a petition filed u/s 7(d) of the Act to endorse an extrajudicial divorce under Muslim Personal Law and to declare the marital status of the parties to the marriage:
- On receipt of the petition, the Family Court shall issue notice to the respondent.
- After service of summons or appearance of the respondent, the Family Court shall formally record the statement of both parties. The parties shall also be directed to produce talaq nama/khula nama (if pronouncement/declaration is in writing)/mubaarat agreement.
- On prima facie satisfaction that there was valid pronouncement of talaq, khula, talaq-e-tafweez, or valid execution of mubaarat agreement, the Family Court shall proceed to pass order endorsing the extrajudicial divorce and declaring the status of the parties without any further enquiry.
- The enquiry to be conducted by the Family Court shall be summary in nature treating it as an uncontested matter.
- The Family Court shall dispose of the petition within one month of the appearance of the respondent. The period can be extended for valid reasons.
- If any of the parties is unable to appear at the Court personally, the Family Court shall conduct enquiry using video conferencing facility.
Accordingly, the Bench directed the Court below to record the statement of the parties, and pass final orders in the light of the observations made in this judgment. [ASBI.K.N v. HASHIM.M.U, 2021 SCC OnLine Ker 3945, decided on 12-10-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitioner: Advocate C.Dilip Anushka Vijayakumar, Advocate P.N.Vijayan Nair and Advocate R.Pradeep
For the Respondent: Advocate Alexander Joseph Akhilasree Bhaskaran