Dismissed

Navaf v. Shima

Kerala HC26 Nov 2018Mat.Appeal/1041/2018

Case brief

AI extract

What is this about?

The High Court dismissed matrimonial appeals challenging a Family Court's refusal to dismiss complaints based on foreign judgments. The bench held that foreign divorce certificates do not act as conclusive judgments under Section 13 CPC for res judicata unless the matter was directly adjudicated between same parties, allowing the domestic court to adjudicate merits.

What did the court decide?

Appeals dismissed. Family court to adjudicate contentions on merits unrestricted by prior observations.

Navaf Vs Shima — Matrimonial and Divorce | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940

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Mat.Appeal.No. 1041 of 2018

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AGAINST THE ORDER DATED 04-10-2018 IN OP 816/2016 of FAMILY COURT, CHAVARA

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APPELLANT/RESPONDENT:

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NAVAF

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S/O.A.R.HASHIR, RESIDING AT NAJIYA HOUSE, AZAD NAGAR-2, PALLIMUKKU, VADAKKEVILA VILLAGE, KOLLAM TALUK AND DISTRICT. (REPRESENTED BY HIS POWER OF ATTORNEY HOLDER NIYAZ HASHIR, AGED 41 YEARS, S/O.A.R.HASHIR, RESIDING AT NAJIYA HOUSE, AZAD NAGAR-2, PALLIMUKKU, VADAKKEVILA VILLAGE, KOLLAM TALUK AND DISTRICT.)

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BY ADVS. SRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.SARUN RAJAN

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RESPONDENT/PETITIONER:

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SHIMA AGED 31 YEARS D/O.SAINUDHEEN, RESIDING AT CHARUVILA VEEDU, SHILPA NAGAR-35, AYATHIL (P.O), VADAKKEVILA VILLAGE, KOLLAM TALUK AND DISTRICT, PIN-691 021.

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BY ADVS. SRI.K.SHAJ SHRI.THAREEQ ANVER SRI.ARUN CHAND SRI.A.SHAMSUDEEN SRI.C.IJLAL SRI.RENJIT GEORGE

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2018, ALONG WITH Mat.Appeal.1042/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat. Appeal Nos.1041 & 1042/2018

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940

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Mat.Appeal.No. 1042 of 2018

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AGAINST THE ORDER DATED 04-10-2018 IN OP 959/2016 of

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FAMILY COURT, KOLLAM

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APPELLANTS/RESPONDENTS:

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1 NAVAF S/O A.R. HASHIR RESIDING AT NAJIYA HOUSE AZAD NAGAR-2 PALLIMUKKU VADAKKEVILA VILLAGE

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KOLLAM TALUK AND DISTRICT (REPRESENTED BY HIS POWER OF ATTORNEY HOLDER NIYAZ HASHIR AGED 41 YEARS S/O A.R. HASHIR RESIDING AT NAJIYA HOUSE, AZAD NAGAR-2 PALLIMUKKU VADAKKEVILA VILLAGE KOLLAM TALUK AND DISTRICT).

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2 A.R.HASHIR AGED 62 YEARS RESIDING AT NAJIYA HOUSE, AZAD NAGAR-2, PALLIMUKKU, VADAKKEVILA VILLAGE, KOLLAM TALUK AND DISTRICT.

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3 RASEENABEEVI

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AGED 52 YEARS W/O.A.R.HASHIR, RESIDING AT NAJIYA HOUSE, AZAD NAGAR-2, PALLIMUKKU, VADAKKEVILA VILLAGE, KOLLAM TALUK AND DISTRICT.

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4 NIYAS

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AGED 41 YEARS S/O.A.R.HASHIR, RESIDING AT NAJIYA HOUSE, AZAD NAGAR-2, PALLIMUKKU, VADAKKEVILA VILLAGE, KOLLAM TALUK AND DISTRICT.

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Mat. Appeal Nos.1041 & 1042/2018

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5 NOUFAN HASHIR AGED 25 YEARS S/O.A.R.HASHIR, RESIDING AT NAJIYA HOUSE, AZAD NAGAR-2, PALLIMUKKU, VADAKKEVILA VILLAGE, KOLLAM TALUK AND DISTRICT.

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BY ADVS. SRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.SARUN RAJAN

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RESPONDENT/RESPONDENT:

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SHIMA AGED 31 YEARS D/O SAINUDHEEN RESIDING AT CHARUVILA VEEDU SHILPA NAGAR -35 AYATHIL (PO) VADAKKEVILA VILLAGE KOLLAM TALUK AND DISTRICT, PIN-691021.

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BY ADV. SRI.K.SHAJ

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2018, ALONG WITH Mat.Appeal.1041/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat. Appeal Nos.1041 & 1042/2018

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C.K. ABDUL REHIM, J. & T.V. ANILKUMAR, J.

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Mat. Appeal Nos. 1041 & 1042 OF 2018

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DATED THIS THE 26^th DAY OF NOVEMBER, 2018

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J U D G M E N T

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Abdul Rehim, J:

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A common order passed by the Family Court, Chavara in O.P. Nos.816/2016 and 959/2016 is under challenge in Mat. Appeal Nos.1041/2018 and 1042/2018, respectively, which are filed under Section 19 of the Family Courts Act, 1984, at the instance of the respondents therein.

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O.P. No.816/2016 before the Family Court was filed by the respondent herein seeking declaration that the 'Talaq' pronounced by the appellant through 'whatsapp', dissolving the marriage existing between them since 22.08.2013, as illegal. O.P. No.959/2016 was filed by the respondent herein against the appellants in Mat. Appeal No.1042/2018, seeking return of money to the tune of Rs.31,00,000/-, gold ornaments, house-hold articles mentioned in Schedule B and C or for payment of its value etc. The appellants in both the cases filed

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Mat. Appeal Nos.1041 & 1042/2018

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objections(written statements) challenging maintainability of both the original petitions, by raising a contention that the claim in both the original petitions are hit by res judicata in view of the judgments pronounced by the courts at 'Ras Al Khaimah'. In view of the said contention, the Family Court raised a preliminary issue in both the cases regarding maintainability of the original petitions. Through the common order impugned herein, dated 04.10.2018, it was found that the contentions against the maintainability of the original petitions are not sustainable and ordered that both the original petitions are liable to be proceeded. The appellants are challenging those findings in these appeals.

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Brief facts necessary for deciding the issue are that, the appellant in Mat. Appeal No.1041/2018 had married the respondent on 22-08-2013 and they were living together for some time at Ras Al Khaimah. Evidently, the appellant had pronounced 'Talaq' unilaterally through a 'whatsapp' message sent to the respondent on 26-01-2015. The respondent herein is challenging the 'Talaq' as invalid, mainly contending that such pronouncement of 'Talaq' is against the versus of the holy Quran and is against the dictum contained in the ruling of this court in Kunhimohammed V. Ayishakutty (2010 (2) KLT

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Mat. Appeal Nos.1041 & 1042/2018

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71) = (2010 (2) KHC 63) . In O.P. No.959/2016 the respondent/wife is claiming for return of money, gold and articles from the appellants in Mat. Appeal No.1042/2018, who are her husband, his parents and siblings, based on an allegation that they have misappropriated those amounts, jewellery and articles.

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The appellants have raised the question of maintainability by relying on Exts.B1 to B3 documents. Exhibit B1 is a 'Divorce Certificate' issued by the Court Department of the Ras Al Khaimah Government. It bears the signature and seal of the RAK court of first instance judge. Exhibit B2 is the english translation of the judgment of Ras Al Khaimah court of first instance, in Law suit No.55/2017. Exhibit B3 is the english translation of the judgment of Ras Al Khaimah Appeal Court, in Appeal Nos.134 & 137/2017.

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With respect to O.P. No.959/2016, the contention before the Family Court was that, the claim with respect to return of 151 sovereigns of gold ornaments made in the original petition is a claim which was already agitated by the respondent in the Law suit No.55/2017, before the court of first instance at Ras Al Khaimah. Therefore it is contended that the issue has already been decided in the judgment of a foreign court which has got conclusiveness as per

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Mat. Appeal Nos.1041 & 1042/2018

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Section 13 of the Code of Civil Procedure 1908. Therefore the original petition is hit by principles of res judicata, is the contention. While dealing with the said question, learned Judge of the Family Court observed that, the wife had sought for realization of gold ornaments mentioned in Ext.B2 case, which were allegedly in the possession of the 1^st appellant at Ras Al Khaimah, whereas the return of gold ornaments sought for in O.P. No.959/2016 is with respect to ornaments adorned by her at the time of her marriage, which are alleged to have been entrusted with the 2^nd and 3^rd appellants and misappropriated by the appellants 1 to 5. Further, the Family Court found that, the respondents 2 to 5 in O.P. No.959/2016 were not parties in Ext.B2 & B3 judgments. Hence it was observed that, the subject matter in both the cases are quite different. It was also found that, apart from return of the gold, there are other claims for return of articles and realization of patrimony, claimed in O.P. No.959/2016. Hence it is found that Exts.B2 & B3 judgments cannot be taken as a bar with respect to O.P. No.959/2016.

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Sri. Jawahar Jose, learned counsel appearing for the appellants contended that, from Ext.B2 and B3 judgments it is evident that what was agitated before the court at Ras Al Khaimah is

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Mat. Appeal Nos.1041 & 1042/2018

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with respect to return of 151 sovereigns of gold ornaments, which exactly is the quantity of gold ornaments described under schedule-B in O.P. No.959/2016. Hence his contention is that, it is a claim which was already adjudicated between the parties before a foreign court, which was decided through the judgment of that court. Therefore it will operate as res judicata, is the argument.

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Question to be decided herein is not exactly as to whether a part of the claim in O.P. No.959/2016 will be hit by res judicata. But the question is whether O.P. No.959/2016 is liable to be thrown out as not maintainable, without adjudication, based on Exts.B2 & B3 judgments of the foreign court. As observed by the Family Court, there is difference among the parties in the litigation. Exhibits.B2 & B3 judgments would reflect that the claims were raised only against the 1^st appellant in Mat. Appeal No.1042/2018. The appellants 2 to 5 were not parties in the case instituted at the Ras Al Khaimah courts. Further, Exts.B2 & B3 would reveal that the respondent herein had various claims in that case with respect to, maintenance for various periods including the maintenance before the 'Talaq', maintenance during the waiting period, maintenance after 'Talaq' etc. There were also claims with respect to provision for accommodation, rent etc.

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Mat. Appeal Nos.1041 & 1042/2018

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Even assuming that the claim for return of 151 sovereigns was also one of the claims adjudicated at the Ras Al Khaimah courts, that by itself cannot be taken as a reason for dismissing the original petition as one hit by res judicata. In other words, that alone will not entitle the appellants to claim dismissal of the original petition in limine as not maintainable. On the other hand, the appellants will be at liberty to challenge the claim based on principle of res 'judicata' or 'estoppel', as the case may be, by raising such contention in the original petition.

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Regarding O.P. No.816/2016, the contention of the appellant in Mat. Appeal No.1041/2018 is that, the 'Talaq' pronounced on 26-01-2015 was already accepted by the Ras Al Khaimah court in Ext.B1 'Talaq Certificate' issued. Therefore the respondent is not entitled to institute the original petition before the Family Court seeking declaration that the 'Talaq' pronounced on 26-01-2015 is invalid or illegal, based on the principle of conclusiveness of Ext.B1 judgment.

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Sri. A. Shamsudeen, learned counsel appearing for the respondent contended that, Ext.B1 is only a 'Divorce Certificate' attested by a Judge in the court of first instance at Ras Al Khaimah

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Mat. Appeal Nos.1041 & 1042/2018

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and it is not a judgment or decree. A copy of Ext.B1 is produced for our perusal. The contents therein is as extracted below;

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“The said person appeared and declared in his full legal capacity that he divorced his wife on 26-01-2015, a revocable divorce for the first time saying you are divorced (3 times), and he intended the divorce, and the two witnesses certified the same, hence, the court informed him that the divorce is in effect as a revocable divorce for the first time and since he did not take her back during iddah (waiting period) the divorce becomes an irrevocable divorce. Therefore, if he wishes to take her back, he may do so after renewing the Nikah. We proved the same at his request in the presence of the witnesses and issued this certificate to act accordingly.”

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Contention of learned counsel for the respondent is that, Ext.B1 certificate was issued under the procedure prevalent in that country by giving an attestation, based on a request of the person who makes the 'Talaq'. According to him, such certificate does not have the effect of a judgment or decree. He canvassed the proposition that, for having conclusiveness under Section 13 of Code of Civil Procedure, the foreign judgment should be conclusive with respect to any matter directly adjudicated upon between the parties. According to learned counsel, there was no such adjudication done under Ext.B1, but it is only an attestation made to the unilateral

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Mat. Appeal Nos.1041 & 1042/2018

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assertion made by one of the parties.

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On the other hand, Sri. Jawahar Jose, learned counsel for the appellant contended that, Ext.B1 'Divorce Certificate' was accepted by the respondent and she had claimed maintenance and other benefits consequential to the divorce, in the suit filed which had culminated in Ext.B2 & B3 judgments. It is the specific contention that, in view of the fact that she had conceded about the divorce and claimed benefits based on that, there is a clear acceptance of the 'Talaq' pronounced on 26-01-2015.

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11 In this regard, the provision contained in Section 40 of the Indian Evidence Act, 1872 may be of relevance. It contemplates a situation where any previous judgment becomes a bar to a second suit or trial. The wording of Section 40 is that, existence of any judgment, order or decree would prevent the court from taking cognizance of a suit or from holding a trial, when the question is whether such court ought to take cognizance of such suit or to hold such trial. The specific term used therein is; 'judgment', 'order' or 'decree'. The above provision coupled with Section 13 of Code of Civil Procedure would makes it clear that, a foreign judgment alone will get conclusiveness with respect to an issue which was directly

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Mat. Appeal Nos.1041 & 1042/2018

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adjudicated upon between the same parties. So also the explanations contained in Section 13 would dis-entitle conclusiveness with respect to a foreign judgment when such judgment has not been given on the merits of a case. Therefore, with respect to O.P. No.816/2016 also we are of the considered opinion that, the Family Court was right in not dismissing the original petition in limine as one not maintainable. Of course, as observed in the other case, the appellant will be at liberty to dispute the relief claimed based on a contention that the respondent is precluded from seeking any declaration in view of her admissions in the case which was adjudicated before the foreign court. But the right to take such a contention cannot be equated as a valid ground to dismiss the original petition in limine, finding it as barred by res judicata based on the conclusiveness of the foreign judgment.

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Under the above mentioned circumstances, this court is not persuaded to interfere with the common order impugned in the above appeals. But at the same time, while dismissing the appeals, we make it clear that the appellants in both the appeals will be at liberty to take all available contentions as mentioned above and the Family court shall adjudicate all such contentions on merits, untrammelled

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Mat. Appeal Nos.1041 & 1042/2018

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by any of the observations contained in the impugned common order of the Family Court or any of the observations contained in this judgment. We also made it clear that, the respondent will also be entitled to raise contentions that, even if any issue has been decided in Exts.B1 to B3 judgments, the same will not operate as res judicata in the present original petitions.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

T.V.ANILKUMAR

JUDGE

AMG

Navaf v. Shima

Case brief

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Navaf v. Shima

Case brief

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