{"id":258242,"date":"2005-10-05T00:00:00","date_gmt":"2005-10-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kayyumparamb-ummer-farooque-vs-peredath-naseema-on-5-october-2005"},"modified":"2017-03-19T03:36:29","modified_gmt":"2017-03-18T22:06:29","slug":"kayyumparamb-ummer-farooque-vs-peredath-naseema-on-5-october-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kayyumparamb-ummer-farooque-vs-peredath-naseema-on-5-october-2005","title":{"rendered":"Kayyumparamb Ummer Farooque vs Peredath Naseema on 5 October, 2005"},"content":{"rendered":"
Kerala High Court<\/div>\n
Kayyumparamb Ummer Farooque vs Peredath Naseema on 5 October, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMat Appeal No. 76 of 2005\n\n\n1. KAYYUMPARAMB UMMER FAROOQUE,            \n                      ...  Petitioner \n\n                        Vs\n\n\n1. PEREDATH NASEEMA, S.\/O.KUNHIMUHAMMED,   \n                       ...       Respondent\n\n                For Petitioner  :SRI.K.SHIBILI NAHA                      \n\n                For Respondent  :SRI.M.P.PRAKASH                         \nThe Hon'ble MR. Justice R.BHASKARAN                     \nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR            \n\n Dated :     05\/10\/2005\n O R D E R\n<\/pre>\n
.PL 58
\n.TM 3
\n.BM 3
\n         R.Bhaskaran & K.P.Balachandran, JJ.@@
\n        j\n<\/p>\n
         ———————————–@@
\n        j
\n         Mat.App.No.76  of 2005 @@
\n        j
\n         R.P.(FC).No.49 of 2005@@
\n        j\n<\/p>\n
         ———————————–@@
\n        j
\n         Judgment@@
\n        j\n<\/p>\n
         ——–@@
\n        j
\n.SP 2
\n((HDR 0
\n{S.A.No.   of 1991}@@
\nAAAAAAAAAAAAAAAAAAA<\/p>\n
 :- # – :@@
\nj<\/p>\n
))
\n.HE 1
\n        Bhaskaran, J.@@
\n        AAAAAAAAAAAAA
\n((HDR 0
\n(Mat.A.76\/05 & R.P.(FC).49\/05)\n<\/p>\n
 -:#:-@@
\nj<\/p>\n
))
\n.HE 2
\n        \tR.P.(FC).No.49 of 2005 arises out  of  M.C.No.561
\n        of 2003 filed by the respondent herein under S.125 of the
\n        Code   of   Criminal   Procedure   for   maintenance  and
\n        Mat.A.No.76 of 2005 arises out of O.P.No.191 of 2004  for
\n        arrears of  maintenance filed by the respondent wife.  In
\n        the claim for maintenance under  S.125  of  the  Code  of
\n        Criminal  Procedure,  the  appellant contended that there
\n        was already a divorce effected by  the  pronouncement  of
\n        talaq on 23-7-1999 and the divorced wife was not entitled
\n        for claiming  maintenance.    Arrears  of maintenance was
\n        claimed for the period from29-10-2000 to 28-10-2003.  The
\n        claim was opposed on the ground that there was already  a
\n        divorce  in  1999  and  the respondent is not entitled to
\n        claim any maintenance.  At the time of  argument  of  the
\n        O.P.   before  the  Family  Court,  a contention was also
\n        raised that the respondent  was  not  entitled  to  claim
\n        arrears of maintenance unless she pleaded and proved that
\n        she belonged   to   Shafi  sect.    This  contention  was
\n        negatived by the Family Court and arrears of  maintenance
\n        was ordered as prayed for.  The Family Court also ordered
\n        for payment of maintenance at the rate of Rs.1,500\/- p.m.
\n        from  the date of petition and arrears of maintenance for
\n        three years at the rate of Rs.1,000\/- p.m.\n<\/p>\n
        \t2.   In  the  appeal  and  revision,  the learned
\n        counsel  appearing  for  the   appellant   and   revision
\n        petitioner mainly contended that the parties are presumed
\n        to  be  Hanafis  and  the  wife  is not entitled to claim
\n        arrears of maintenance.   He  also  contended  that  when
\n        there   is  a  pronouncement  of  talaq  and  divorce  is
\n        effected, a divorced Muslim wife cannot claim maintenance
\n        and therefore the Family Court has gone wrong in allowing
\n        the application filled by the respondent wife.    In  the
\n        light   of   the   above   contentions,  the  points  for
\n        consideration  are  (1)  whether  the  Family  Court  was
\n        justified  in  law  in awarding arrears of maintenance to
\n        the respondent wife, and (2) whether there was a  divorce
\n        as  contended by the appellant and whether the respondent
\n        is disentitled to file an application under S.125 of  the
\n        Code of Criminal Procedure before the Family Court.
\n        Point No.1@@
\n        AAAAAAAAAA\n<\/p>\n
        \t3.   The  learned  counsel  for   the   appellant
\n        strongly  relied on the decision of Madhavan Nair, J., in
\n        Naha Haji v.  Karikutty (1966 KLT 445).   In  that  case,@@
\n        AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        there  is  an observation that the generality of Mappilas
\n        in South Malabar are Shafis; but, it cannot be said  that
\n        every Mappila   in   South  Malabar  is  a  Shafi.    The
\n        presumption can only be that an Indian Muslim is a  Sunni
\n        of the  Hanafi  sect.  Whenever deviation from the Hanafi
\n        law is sought to be relied on in a case,  it  has  to  be
\n        pleaded and  proved as a fact.  These observations are in
\n        the nature of obiter dictum  as  the  learned  Judge  has
\n        himself  observed that it was unnecessary in that case to
\n        decide  whether  the  parties  concerned  are  Shafis  or
\n        Hanafis;  for,  even if they were Shafis, there would not
\n        have been any difference in the result of the case.   The
\n        learned Judge was deciding the question whether a gift by
\n        the  father  to a daughter had come into effect and could
\n        be revoked by the father.  It was observed that  even  if
\n        parties  are  Shafis the gift in the circumstances of the
\n        case had become operative.  No  doubt,  Justice  Madhavan
\n        Nair has  noted  that  in  Katheesa  Umma  v.  Narayanath@@
\n                                   AAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        Kunhamu (AIR 1964 SC 275), a case from North Malabar, the@@
\n        AAAAAAAAAAAAAAAAAAAAAAAAAA
\n        parties are seen treated as Hanafis bythe Supreme  Court.
\n        But  on  going through the decision of the Supreme Court,
\n        there was no question raised as to which sect the parties
\n        belonged to and there was no decision on that  aspect  at
\n        all.   Though  there  was  a passing observation that the
\n        parties are Hanafis, the Supreme Court has not laid  down
\n        any  law  about the general presumption and the necessity
\n        for pleading and proving in all cases if a claim is  made
\n        for  past  maintenance that the parties belonged to Shafi
\n        sect.\n<\/p>\n
        \t4.  In Abdul Karim v.    Nabeesa<\/a>  (1987  (2)  KLT@@
\n                AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA\n<\/p>\n
        887),  Pareed  Pillay,  J.,  as  His  Lordship  then was,@@
\n        AAAAA
\n        noticed that in the plaint in that case it was not stated
\n        that the parties belong  to  Shafi  sect.    But  it  was
\n        asserted  in  the replication field by the plaintiff that
\n        they and defendant follow Shafi School.  It was  observed
\n        that  majority  of Muslims in Kerala follow Shafi School.
\n        So far as this State is concerned Hanafis are only in the
\n        minority.  Judicial notice  of  the  above  position  was
\n        taken  by  the  learned Judge and it was found that there
\n        was ample evidence in the case that the parties  followed
\n        Shafi School.   When judicial notice is taken of the fact
\n        that majority of  the  Muslims  in  Kerala  follow  Shafi
\n        School,  we do not understand as to why there should be a
\n        presumption so far as the Muslims in Kerala are concerned
\n        that they are Hanafis; and the  necessity  to  plead  and
\n        prove that the parties belonged to Shafi sect, when alone
\n        a decree  for  arrears of maintenance can be granted.  In
\n        this  case,  it  is  important  to  note  that  when  the
\n        plaintiff  claimed  arrears  of  maintenance there was no
\n        contention  in  the  written  statement  filed  that  the
\n        parties   belonged  to  Hanafi  sect  and  therefore  the
\n        plaintiff cannot claim arrears of maintenance.    It  was
\n        only  in  the  proof  affidavit  of the power of attorney
\n        holder of the appellant  that  it  was  stated  that  the
\n        parties belonged to Hanafi sect.  When Rw.1 was examined,
\n        no  attempt  was  made  to bring out as to which sect the
\n        parties belonged to.  The appellant was not  examined  in
\n        court.   The  question  still  arises  as  to how far the
\n        evidence of the power of attorney can be  relied  on  and
\n        can  be  treated  as a substitute for the evidence of the
\n        appellant himself.  As  held  by  the  Supreme  Court  in
\n        M.P.Rural Agrl.E.O.Assn.  v.    State  of M.P.  (2004 (2)@@
\n        AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        KLT 265 (SC), the power of  attorney  can  give  evidence@@
\n        AAAAAAAAAAAAA
\n        only  in  respect  of acts done by him in the exercise of
\n        powers granted by the instrument, but  he  cannot  depose
\n        for  the  principal in respect of the matter on which the
\n        principal alone can have  personal  knowledge.    In  the
\n        absence  of sufficient pleadings to raise an issue on the
\n        particular sect to which the parties belonged to  and  an
\n        issue  raised  in  that  respect, it may not be proper to
\n        defeat  the  claim  for  maintenance  on  such  technical
\n        contentions.   It  is to be noticed that the appellant is
\n        claiming a special exemption from the general law of  the
\n        land.   It  is,  no  doubt,  true that though generally a
\n        neglected wife is entitled to maintenance if the personal
\n        law of the  parties  is  otherwise  the  husband  may  be
\n        entitled to  resort to the personal law.  But such claims
\n        must be beyond doubt.  If  as  noted  in  this  case  the
\n        majority of Muslims in Kerala especially in South Malabar
\n        are Shafis, we are of opinion that it will be most unjust
\n        to  start with a presumption that they are Hanafis and in
\n        the absence of pleading and proof, to hold that neglected
\n        wife is not entitled for arrears of maintenance.  We  are
\n        of opinion that Justice Pareed Pillay was fully justified
\n        in taking judicial notice of the fact that Hanafis in the
\n        State  are  only  in  the  minority  and  majority of the
\n        Muslims in Kerala follow Shafi School.  This is supported
\n        by the observation  in  the  Madras  District  Gazetteers
\n        (Malabar),  Volume  1, page 188 wherein it is stated that
\n        the Mappilas belong to the Shafi School of the Sunni Sect
\n        of Mohammadans.  As early as in  1937,  the  Madras  High
\n        Court in Kutti Umma v.  Nedungadi Bank Ltd., Calicut<\/a> (AIR@@
\n                 AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        1937  Madras  734) also found that the doctrines of Shafi@@
\n        AAAAAAAAAAAAAAAAAA
\n        School are found among  the  Mappilas  of  South  Malabar
\n        generally.   In  Mulla’s Principles of Mohammadan Law, in
\n        paragraph 28, it is stated as follows:
\n……………LT…….T…….T…….T…….T…….TJ
\n.SP 1<\/p>\n
               \t\t“The  Sunnis are divided into four
\n               sub  sects,  namely,   the   Hanafis,   the
\n               Malikis,     the     Shafeis     and    the
\n               Hanbalis…..Considerable     groups     of
\n               Mahommedans  in the south of India, such as
\n               Kerala and Malabar, are Shafeis”.\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        In view of the above weighty authorities, the counsel for
\n        the  appellant  is  not  right  in contending that in the
\n        absence of pleading and proving to the  effect  that  the
\n        parties  are  to  be presumed to be Hanafis and therefore
\n        the plaintiff is not entitled for past maintenance.  This
\n        point is therefore found in favour of the respondent  and
\n        against the appellant.\n<\/p>\n
        Point No.2@@
\n        AAAAAAAAAA\n<\/p>\n
        \t5.    The  question  whether  the  respondent  is
\n        entitled for maintenance will depend  upon  the  question
\n        whether  there  was  a valid divorce effected between the
\n        parties.  The learned counsel for  the  appellant  mainly
\n        relied on Ext.B2 deposition in C.C.No.49 of 2001 produced
\n        in O.P.No.191  of  2004.   C.C.No.49 of 2001 was filed by
\n        the respondent against the appellant before the  Judicial
\n        First  Class Magistrate under S.498-A of the Indian Penal
\n        Code<\/a>.  In the evidence of the respondent, she had  stated
\n        that  the  appellant  had pronounced talaq three times on
\n        14-2-2000.  According to the counsel for  the  appellant,
\n        that  is sufficient admission to the effect that there is
\n        a valid divorce between the parties.  The  appellant  has
\n        no case that he has divorced the respondent on 14-2-2000.
\n        On  the other hand, according to him, she was divorced on
\n        23-7-1999.  The question to be considered is  whether  in
\n        this  case  there  is  any evidence of a valid divorce by
\n        pronouncement of talaq under Mohammadan Law.  The general
\n        impression as reflected in the  decision  of  a  Division
\n        Bench of this Court in Pathayi v.  Moideen (1968 KLT 763)@@
\n                               AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        was  that  the  only  condition  necessary  for  a  valid
\n        exercise of the right of divorce by a husband is that  he
\n        must be a major and of sound mind at the that time and he
\n        can  effect  divorce whenever he desires and no witnesses
\n        are necessary for dissolution of  the  marriage  and  the
\n        moment  when talaq is pronounced, dissolution of marriage
\n        is effected; it can be conveyed by  the  husband  to  the
\n        wife  and  it  need  not  be even addressed to her and it
\n        takes effect the moment it comes to  her  knowledge  etc.
\n        But  this  can  no  longer  be  accepted  in  view of the
\n        authoritative  pronouncement  of  the  Supreme  Court  in
\n        Shamim Ara v.  State of U.P<\/a>.  (2002 (3) KLT 537 (SC).  In@@
\n        AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        that  decision  the  Apex  Court accepted the view of the
\n        Division Bench decision of  the  Gauhati  High  Court  in
\n        Must.Rukia Khatun  v.  Abdul Khalique Lasker (1981) 1 GLR@@
\n        AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA\n<\/p>\n
        375)  Baharul  Islam,  J.,  as  His  Lordship  then  was,@@
\n        AAAA
\n        speaking  for the Bench, and of the same learned Judge in
\n        Jiauddin Ahmed v.  Mrs.Anwara Begum  (1981)  1  GLR  358)@@
\n        AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        that  to  be  a valid talaq it should be for a reasonable
\n        cause and  be  preceded  by  attempts  at  reconciliation
\n        between  the  husband  and the wife by two arbiters – one
\n        from the wife’s family and the other from  the  husband’s
\n        side and if the attempts fail talaq may be effected.  The
\n        Supreme  Court  has also approved the view of the learned
\n        Judge and jurist, V.R.Krisha Iyer, J., of this  Court  in
\n        Yousuf Rawther  v.   Sowramma<\/a> (1970 KLT 477) holding that@@
\n        AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        it is a popular fallacy that a Muslim male enjoys,  under
\n        the  Quaranic  Law,  unbridled authority to liquidate the
\n        marriage.  The Holy Quran expressly forbids a man to seek
\n        pretexts for divorcing his wife, so long as  she  remains
\n        faithful and  obedient  to him.  Justice Krishna Iyer has
\n        referred to various authorities to come to the conclusion
\n        that divorce was permissible in Islam  only  in  case  of
\n        extreme cases  and  where  reconciliation has failed.  In
\n        Shamin Ara’s case (2002 (3) KLT  537  (SC),  the  Supreme@@
\n        AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        Court  disapproved  the  action of the presiding Judge in
\n        relying on the affidavit of the  husband  in  some  civil
\n        suit  wherein he had stated that he had divorced the wife
\n        and the  Family  Court  had  accepted  the  affidavit  in
\n        corroboration  of  the  contention of the husband that he
\n        had divorced the wife.\n<\/p>\n
        \t6.  The only thing to be  further  considered  in
\n        this  case  is  whether  the divorce alleged to have been
\n        effected by the husband  by  pronouncement  of  talaq  on
\n        23-7-1999 is  proved  or  not.  The mere pronouncement of
\n        talaq three times even in the presence of the wife is not
\n        sufficient to effect a divorce under Mohammadan Law.   As
\n        held  by the Supreme Court in Shamim Ara’s case (2002 (3)@@
\n                                      AAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        KLT 537 (SC), there should be an attempt of mediation  by@@
\n        AAAAAAAAAAAAA
\n        two  mediators;  one  on  the side of the husband and the
\n        other on the side of the wife and only in case it  was  a
\n        failure  that  the husband is entitled to pronounce talaq
\n        to divorce the wife.  The marriage between the  appellant
\n        and the respondent was on 20-9-1998.  After two months of
\n        joint living the appellant went abroad.  According to the
\n        wife,  she  was  compelled  to leave the marital house on
\n        account of the ill-treatment and  demand  for  additional
\n        gold ornaments  and  mental  cruelty.  To prove talaq the
\n        appellant-husband was not examined.  As already  observed
\n        earlier,  the  father who is the power of attorney holder
\n        is not competent to give evidence as to the  circumstance
\n        and the  manner in which talaq was pronounced.  Though it
\n        is stated by  Pw.1  that  talaq  was  pronounced  in  the
\n        presence  of  Aboobakcer, Alavikunju and Basheer, none of
\n        them was examined in court.  The husband  was  admittedly
\n        working in  Jiddah  on  23-7-1999.   Though it was argued
\n        that the information regarding talaq was conveyed through
\n        post, no document was produced in support of the same.\n<\/p>\n
        \t7.  Even assuming that the evidence of  power  of
\n        attorney  holder can be looked into as evidence on behalf
\n        of the appellant, we have to consider as to what  he  has
\n        stated in evidence.  In M.C.No.561 of 2003 even the chief
\n        examination was  in court and not by affidavit.  All that
\n        he has  deposed  is  that  since  there  is  no  marriage
\n        relationship  between  his son and the appellant there is
\n        no liability for his son to pay maintenance.  He has  not
\n        given any of the details of talaq.  In O.P.No.191 of 2004
\n        which   was   for   arrears  of  maintenance,  the  chief
\n        examination is by affidavit.   Though  it  is  stated  in
\n        paragraph  8  of the affidavit that one Abdulrahiman Haji
\n        and Valappil Mohamed were the mediators and that the wife
\n        did not agree for further continuing the  marriage,  none
\n        of them  was  examined  in  court.  There is no case that
\n        there were two mediators; one on the side of the wife and
\n        the other on the side  of  the  husband,  to  settle  the
\n        disputes which  was  a  failure.   Even assuming that the
\n        wife has stated that the  husband  had  pronounced  talaq
\n        thrice  on  14-2-2000  if  by  that mere pronouncement of
\n        talaq there was no valid dissolution  of  marriage,  that
\n        admission  by  itself  will  not  stand in the way of her
\n        claiming maintenance or arrears of maintenance.  She  has
\n        never  admitted that she has been validly divorced by the
\n        appellant.  Rw.1  has  admitted  that  on  14-2-2000  the
\n        appellant  has not dissolved the marriage between him and
\n        his wife.  In the absence of any evidence, whatsoever  to
\n        substantiate the case of a valid talaq, we are of opinion
\n        that  the  appellant  is not entitled to resist the claim
\n        for maintenance on the ground that there  was  already  a
\n        divorce of  the marriage between the parties.  In view of
\n        the decision of the Supreme Court quoted earlier, we find
\n        that the appellant has not succeeded  in  establishing  a
\n        valid  talaq  and the finding of the Family Court is only
\n        to be upheld and we do so.\n<\/p>\n
        \tIn   the  result, there is no merit in the appeal
\n        and  the revision and they are dismissed with costs.
\n        October 5, 2005.\n<\/p>\n
        arn.\n<\/p>\n
        \t\t\t\tR.Bhaskaran, Judge.\n<\/p>\n
        \t\t\t\tK.P.Balachandran, Judge.\n<\/p>\n
((HDR 0<\/p>\n
))
\n.HE 3
\n.PA
\n.JN <\/p>\n
                                         \t“C.R.”@@
\n                                          AAAAAA
\n        \t\t\t\t   R.Bhaskaran &
\n        \t\t\t\tK.P.Balachandran, JJ.\n<\/p>\n
        \t\t\t   —————————-\n<\/p>\n
        \t\t\t   —————————–\n<\/p>\n
        \t\t\t      Mat.App.No.76 of 2005  &
\n        \t\t\t       R.P.(FC).No.49 of 2005<\/p>\n
        \t\t\t              Judgment<\/p>\n
        \t\t\t           October 5, 2005\n<\/p>\n
        \t\t\t   —————————–\n<\/p>\n
.PA <\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Kayyumparamb Ummer Farooque vs Peredath Naseema on 5 October, 2005 IN THE HIGH COURT OF KERALA AT ERNAKULAM Mat Appeal No. 76 of 2005 1. KAYYUMPARAMB UMMER FAROOQUE, … Petitioner Vs 1. PEREDATH NASEEMA, S.\/O.KUNHIMUHAMMED, … Respondent For Petitioner :SRI.K.SHIBILI NAHA For Respondent :SRI.M.P.PRAKASH The Hon’ble MR. Justice R.BHASKARAN The Hon’ble MR. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-258242","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKayyumparamb Ummer Farooque vs Peredath Naseema on 5 October, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kayyumparamb-ummer-farooque-vs-peredath-naseema-on-5-october-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kayyumparamb Ummer Farooque vs Peredath Naseema on 5 October, 2005 - 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