SAJANI Vs. KALAM PASHA

JUDGEMENT

(1.) These MAT Appeals arise from a common judgment dated 15.02.2021 of the Family Court Ernakulam in O.P.Nos.675/2019, 2662/2019 and M.C.No. 297/2019. The OP's and MC were preferred by Smt. A.Sajani against her husband Dr. B. Kalam Pasha, a serving judicial officer in the State of Kerala. While the prayer in the OP's were for a declaration that the talaq pronounced against her by her husband was void and invalid, and for a consequential decree for restitution of conjugal rights, the prayer in the MC was for maintenance in terms of Section 125 of the Code of Criminal Procedure [hereinafter referred to as the 'Cr.PC'] on the premise that the marriage continued to subsist in the eyes of law. The court below, by the common judgment aforementioned, dismissed the OP's and consequently the MC as well. While the two appeals preferred by the appellant before us are against the common judgment of the Family Court in the OP's mentioned above, for reasons best known to the appellant, no appeal/revision has been carried against the common judgment insofar as it dismisses the MC filed for maintenance.

(2.) The case pleaded by the appellant in O.P.No.675/2019 was that her marriage with the respondent was solemnised at Ernakulam on 05.04.2009 and they stayed together as husband and wife at various places where her husband was posted as a judicial officer. At the time of her marriage with the respondent, he was a widower with two children from his first marriage. The appellant stated that, while there were no issues born to her from the marriage with the respondent, she took good care of the respondent's daughters from his earlier marriage and their life together was cordial in nature. While so, in September, 2016, while they were residing in their house at Ernakulam, the respondent took her to her home in Kollam and left her there and told her not to return to their matrimonial home or contact him any more. Later she received a Talaqnama dated 01.03.2017 (the year is mistakenly shown as '2018' in the document), to which she preferred a reply dated 09.03.2017 denying the existence of circumstances that would permit a pronouncement of talaq against her. To the said letter, the respondent sent a reply to her dated 09.03.2017. She later came to know that the respondent had contracted another marriage with a younger girl, impleaded as the second respondent in the OP, and that he had kept the said fact a secret owing to his position as a judicial officer. On the said factual pleadings, the appellant contended that the talaqnama was not a valid one in law since (i) it was post dated and the date was corrected by the respondent only subsequently through his letter dated 09.03.2017 and the said correction was not attested by any witness, (ii) there was only a single pronouncement of talaq and it was made irrevocable thereby rendering it illegal and void going by the law laid down in Shayara Bano v. Union of India ? [(2017) 9 SCC 1] (iii) that no valid grounds had been established by the respondent that would have enabled him to divorce her. The prayer in the OP was for a declaration that the talaq pronounced by the respondent was illegal and void, that she continued to be the sole living wife of the respondent and that the second respondent was not the legally wedded wife of the respondent.

(3.) O.P.No.2662/2019 was preferred, invoking Section 9 of the Family Courts Act, based on substantially the same factual pleadings as above to claim a decree of restitution of conjugal rights on the contention that there was no valid talaq pronounced by the respondent that had the effect of dissolution of their marriage. M.C.No.297/2019 was filed under Section 125 of the Cr.PC claiming maintenance from the respondent on the contention that, in the absence of a valid talaq, the petitioner continued to be the legally wedded wife of the respondent, whom he had deserted since September, 2016. Taking into account the income of the respondent and the amount required to meet her living expenses, she claimed maintenance @ Rs.1 Lakh per month from the respondent.