IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
OP (FC) NO. 476 OF 2021
OP 387/2021 OF FAMILY COURT, MUVATTUPUZHA, ERNAKULAM
PETITIONER/RESPONDENT:

ASBI.K.N, D/O NASSER K.P.

AGED 29 YEARS, KUNNAPPILLI HOUSE, PEZHAKKAPPILLY
PO, MULAVOOR VILLAGE, MUVATTUPUZHA PIN 686673

BY ADVS.C.DILIP
ANUSHKA VIJAYAKUMAR
P.N.VIJAYAN NAIR
R.PRADEEP

RESPONDENT/PETITIONER:

HASHIM.M.U, S/O UMMERKHAN M.A. @ UMMER, AGED 33

YEARS, MUKKANNIYIL HOUSE, KALAMBOOR, ENANALLOOR
P.O, ENANELLOOR VILLAGE, MUVATTUPUZHA TALUK, NOW
AT ZONE - 27, STREET-220, BUILDING NO-45, DOHA
QATAR, REPRESENTED BY POWER OF ATTORNEY HOLDER
MR.UMMERKHAN, M.A. @ UMMER, S/O ABDUL RAHMAN, AGED
64 YEARS, MUKKANNIYIL HOUSE, KALAMBOOR, ENANALLOOR
PO, ENANELLOR VILLAGE, MUVATTUPUZHA TALUK 686673.

BY ADVS.ALEXANDER JOSEPH
AKHILASREE BHASKARAN

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON

12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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"C.R."

J U D G M E N T

Dated this the 12th day of October, 2021

Kauser Edappagath,J.

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 (for short, 'the Act') to endorse an extrajudicial divorce

under the Muslim Personal Law and to declare the marital status

of the parties to the marriage has arisen for consideration in this

original petition.

2. The petitioner was the wife of the respondent. The

parties are Muslims. Their marriage was solemnized on 4/5/2015.

A girl child was born in the wedlock on 10/2/2018. The

respondent divorced the petitioner by pronouncing talaq. The

pleadings would show the pronouncement of talaq was in

accordance with Muslim Personal Law. The third pronouncement

was made on 28/12/2019. It was communicated to the petitioner

by registered post. The petitioner disputed the legal validity of

the pronouncement of talaq and filed OP No.913/2019 at the

Family Court, Muvattupuzha (for short, 'the Court below') for

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restitution of conjugal rights. Thereafter the respondent filed

original petition at the Court below as OP No.387/2021 to declare

the marital status of the petitioner and the respondent on the

ground that the marriage has been dissolved by pronouncement

of talaq. The petitioner appeared at the Court below on

13/9/2021. The court below adjourned the original petition to

10/11/2021. The respondent filed IA No.6/2021 to advance hear

the case and it was advanced to 25/9/2021. On that day, the case

was adjourned for cross-examination to 28/9/2021 and it was

taken for judgment to 30/9/2021. It was at that juncture the

petitioner preferred the above original petition contending that

she was not given proper opportunity by the Court below to

contest the original petition on merits.

3. We have heard Sri.C.Dilip, the learned counsel for the

petitioner and the Sri.Alexander Joseph, the learned counsel for

the respondent.

4. The Division Bench of this Court in X and Others v. Y

and Others (2021 (2) KHC 709) has 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

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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 effected 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.

5. 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
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is not necessary to the validity of any of these modes of extra

judicial divorce. 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. 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". It

could be ascertained by perusal of the recitals in talaq

nama/khula nama or its communication (if it is in writing) or by

recording the statement of the parties. 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 a proceedings. If the Court is prima facie satisfied that there

was valid pronouncement of talaq/khula/talaq-e-tafweez, it shall

endorse the same and declare the status of the parties. In the
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case of mubaarat, if the Court is prima facie satisfied that

mubaarat agreement has been executed and signed by both

parties, it shall endorse the same and declare the status of the

parties. The Court shall pass formal order declaring the marital

status without any delay. If any of the parties want to challenge

the extrajudicial divorce by talaq, khula, mubaarat or talaq-e-

tafweez mode, he/she is free to challenge the same in

accordance with law in appropriate forum. The declaration

granted by the Family Court u/s 7(d) endorsing the extrajudicial

divorce shall be subject to the final outcome of such proceedings,

if any. We consider it desirable 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.

(i) On receipt of the petition, the Family Court shall issue

notice to the respondent.

(ii) After service of summons or appearance of the

respondent, as the case may be, the Family Court shall formally

record the statement of both parties. The parties shall also be

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directed to produce talaq nama/khula nama (if

pronouncement/declaration is in writing)/mubaarat agreement.

(iii) The Family Court shall thereafter on perusal of the

recitals in talaq nama/khula nama/ communication of talaq, khula

or talaq-e-tafweez (if available) and the statement of the parties,

ascertain whether there was valid pronouncement of

talaq/khula/talaq-e-tafweez. In the case of mubaarat, the Family

Court shall ascertain whether the parties have executed and

signed mubaarat agreement.

(iv) On prima facie satisfaction that there was valid

pronouncement of talaq, khula, talaq-e-tafweez, as the case may

be, 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.

(v) The enquiry to be conducted by the Family Court shall

be summary in nature treating it as an uncontested matter.

(vi) 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.

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(vii) If any of the parties is unable to appear at the Court

personally, the Family Court shall conduct enquiry using video

conferencing facility.

6. Coming to the facts of the case, it is seen that

intimation given to the petitioner about the pronouncement of

talaq has been produced by the respondent. The Court below

shall record the statement of the parties, if necessary, without

further delay and pass final orders in the light of the observations

made in this judgment. The original petition is disposed of

accordingly.

Registry is directed to forward a copy of this judgment to all

the Family Courts in the State.

Sd/-
A.MUHAMED MUSTAQUE
JUDGE

Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
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APPENDIX

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE PHOTO COPY OF THE ORIGINAL PETITION

NO.387/2021 DATED 29.6.2021 ON THE FILE
OF FAMILY COURT, MUVATTUPUZHA.

EXHIBIT P2 TRUE PHOTOCOPY OF IA NO.6/2021 IN OP

NO.387/2021 DATED 22.09.2021 ON THE FILE
OF FAMILY COURT, MUVATTUPUZHA.

EXHIBIT P3 TRUE COPY OF PROCEEDINGS OF OP

NO.387/2021 ON THE FILE OF FAMILY COURT,
MUVATTUPUZHA, EXTRACTED FROM THE
OFFICIAL WEBSITE OF DISTRICT COURT.