Woman Moves Kerala High Court Over Inaction By Family Court To Excuse Her From Observing Iddat Despite No Consummation Since 2 Yrs

A plea has reached the Kerala High Court challenging the Family Court's inaction over a woman's plea to be excused from observing iddat on the ground that there has been no consummation with the respondent (husband) since the last two years. 

When the matter came up for consideration, a bench of Justice Muhamed Mustaque and Justice Sophy Thomas temporarily stayed the injunction order passed by the Family Court restraining the woman from entering into a second marriage.

The petitioners are a 24-year-old woman and her minor son which she had with the first respondent herein. After consistent and aggravated mental cruelty by the respondent, they were chased out of his residence in 2019, the plea states. 

Thereafter, she preferred applications seeking the return of her gold ornaments which were allegedly kept at the respondent's residence and maintenance for her and their minor son before a Family Court last year. This is still pending consideration.

Pursuant to a landmark decision from the High Court, she pronounced khula (Islamic terminology for divorce pronounced by wife) and sent notice of the same to the respondent. 

Later on, she was served with an injunction order from the Family Court restraining her from entering into a second marriage or acting upon the basis of the khula until further orders.

Meanwhile, the woman approached the Family Court with an application to discontinue iddat after khula since there was no consummation with the respondent for the past two years.

However, the Family Court posted the matter to be taken up on 29th December. Hence, the woman moved the High Court seeking a directive to the Family Court to dispose of her application at the earliest. 

She argued that the very object of iddat was to ascertain the wife's pregnancy to avoid confusion of parentage in case of a subsequent marriage. 

In the plea, it was submitted that she was willing to prove that she was not pregnant by any means to satisfy the object of iddat. 

The petitioner argued that there was no relationship whatsoever between her and the respondent due to the ongoing litigation which was initiated two years ago. 

As such, the petitioner prayed that she may be excused from observing iddat for the remaining period so she can appear before the Court to avoid further delay in proceedings. 

She also quoted the Mullah's principles of Mohammedan Law which stated that "if there was no consummation, there is no Iddat and she is free to marry immediately." 

It has also been argued that the delay in considering her applications by the Family Court is grossly illegal, arbitrary and unjustifiable and warrants interference from the High Court. 

It was also prayed that the injunction order passed against the khula was violative of the dictum laid down by the High Court and thereby liable to be set aside. 

The petition has been filed through Advocates T.P. Sajid, K.P. Mohamed Shafi and Sreesham B. Chandran. 

Case Title: Fathimathul Nabila Noushad & Anr v. Mohammed Aslam & Ors.