Kerala High Court Issues Guidelines For Family Court To Endorse Divorce Under Muslim Personal Law, Says Detailed Enquiry Not Necessary

The Kerala High Court has formulated guidelines to be followed by the Family Court in a petition filed to endorse an extrajudicial divorce under Muslim Personal Law.

A Division Bench comprising Justice A. Muhamed Mustaque and Justice Kauser Edappagath was considering the scope and nature of the enquiry to be undertaken by the Family Court in such cases:

"The unilateral extrajudicial divorce under Muslim Personal law is complete when either of the spouses pronounces talaq, talaq-e-tafweez or khula, in accordance with Muslim Personal Law. So also extrajudicial divorce by mubaarat mode is complete as and when both spouses enter into a mutual agreement. The seal of the Court is not necessary to the validity of any of these modes of extra-judicial divorce."

The Court further added that a detailed enquiry was not necessary in such cases since the endorsement of extrajudicial divorce by the Family Court is contemplated only to have a public record of such divorce.

"... a 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 an effective attempt of conciliation."

It was added:

"No further enquiry as in the case of adversarial litigation like chief examination and cross-examination of the parties are not at all contemplated in such proceedings. If the Court is prima facie satisfied that there was a valid pronouncement of talaq/khula/talaq-e-tafweez, it shall endorse the same and declare the status of the parties."

The Bench ordered that in such cases the Family Court should pass a formal order declaring the marital status without any delay.

It was also clarified that if any of the parties want to challenge the extrajudicial divorce, they are free to challenge the same in accordance with law before the appropriate forum. The declaration granted by the Family Court u/s 7(d) of the Family Act endorsing the extrajudicial divorce shall be subject to the final outcome of such proceedings if any. 

The Court was adjudicating upon a plea filed by a Muslim woman who contended that she was not given a proper opportunity by the Family Court to contest the original petition filed by her husband on merits. 

Her husband, the respondent herein, had divorced the petitioner by pronouncing talaq in accordance with the law. Thereafter, he moved the Family Court to declare that their marriage has been dissolved. 

Advocate C. Dileep appeared for the petitioner and Advocate Alexander Joseph represented the respondent in the matter. 

Guidelines To Be Followed by Family Court in a Petition u/7(d) of Family Act:

• On receipt of the petition, the Family Court shall issue notice to the respondent.
• 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 directed to produce talaq nama/khula nama (if pronouncement/declaration is in writing)/mubaarat agreement. 
• 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 a 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. 
• On prima facie satisfaction that there was a 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 an 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 an enquiry using video conferencing facility.  

Case Title: Asbi K.N. v. Hashim M.U

Click Here To Read/Download The Judgment