Why wait at Court’s corridor for prioritized hearing, when you can invoke the right to extra-judicial divorce? Kerala High Court tells a Muslim woman seeking divorce

Kerala High Court

Kerala High Court: In a divorce case where the Family Court had refused to hear the case on priority for early disposal, the Division Bench of A. Muhamed Mustaque* and Sophy Thomas, JJ. on observing that the woman belonged to Muslim community, suggested her to exercise her right to extra-judicial divorce.

The Court opined that the Presiding Officer of the Family Court is the best person to judge the management of the cases pending before the Court.

The petitioner, a 26-year-old lady Muslim woman had approached the Family Court for divorce and recovery of gold ornaments. She had sought for early hearing of the petition in the light of the judgment in Shiju Joy v. Nisha, 2021 SCC OnLine Ker 1391, wherein the High Court had issued guidelines to streamline, the disposal of the pending cases before the Family Court. Family Court was also permitted to depart from the guidelines in appropriate cases.

In the instant case, the Family Court dismissed the petition by stating that the petition being considerably a new case, it could not be prioritized f or disposal. The Family Court further found that there were no sufficient reasons to depart from the normal listing of the case.

Assailing the Family Court’s order, the petitioner contended that her parents are Senior citizens and they are longing for her second marriage after settling all the monetary claims.

The Court noted that the petitioner, being from a Muslim community has every right to invoke extra judicial divorce to separate legal marriage and there was no reason for her to wait at the corridors of the court for having separation of her marriage with the respondent. The Court said,

“When law itself bestowed her with the right to invoke extra-judicial divorce, we are at the dismay, why the petitioner has not chosen to exercise that option. If she really needs legal separation, she could have very well invoked extra-judicial divorce even in the pending matter.”

The Court further observed that if she resorts to extra-judicial divorce, the Family Court record the same in the proceedings pending before it and can very well dispose of the case without further delay as there would be no adjudication required.

In regard to the monetary claims, claim for movables, etc., the Court held that it could not pressurize the Family Court to dispose of such case overlooking the other pending matters. Further, the Court opined that the Presiding Officer of the Family Court is the best person to judge the management of the cases pending before the Court.

Hence, the Court affirmed the order passed by the Family Court and dismissed the instant petition.

[Aayisha A. v. Ahammed Haneefa, OP (FC) No. 90 of 2022, decided on 17-02-2022]


*Judgment by: Justice A. Muhamed Mustaque


Appearance:

For the Petitioner: Advocate B. Mohanlal


Kamini Sharma, Editorial Assistant has put this report together.


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