Wife's Suit For Declaration Of Right In Ex-Husband's Property Maintainable Before Family Court: Karnataka High Court

The Karnataka High Court has said that a suit filed by a wife before the family court to seek a declaration of share in property of her divorced husband as agreed in the terms of divorce, is maintainable.A division bench of Justices Krishna S Dixit and Vijaykumar A Patil dismissed an appeal filed by the ex-husband questioning the jurisdiction of the family court to declare that the divorced wife was entitled to 1/4th share in his suit house property, by way of partition as per Section 24 of Code of Civil Procedure and restraining him from permanently alienating the property. Referring to Section 7 of the Family Court Act, it said “By its terminology it vests a pervasive jurisdiction in the Family Courts in respect of matrimonial causes.” Section 7 (1) (c) of the Act, provides filing of a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. The court said, “The suit of the kind, perfectly fits into its wide phraseology.” The court also rejected the contention that the appellant that the family court could not have passed the decree as the marriage was dissolved in terms of this Khulanama. As per Islamic Law where the marriage is dissolved by khula, it is the wife, who has to give consideration to the husband and not the reverse.Court explained that in Islamic Law there lies a difference between the process by which khula is brought about and the way mubara'at is effected: in the former, the proposal to put an end to the marital relation comes from the side of the wife whereas in the later both the sides bring it upReferring to the deed dated 06.04.2008 entered into between the parties which was a mixed case of mubara'at & Khula, the court said “The appellant and the respondent have entered into a contract to put an end to the marriage and accordingly the marriage came to be dissolved. As a part of bargain between the parties, in which others too participated, the appellant had undertaken to give 1/4th share in the subject property to the respondent. This cannot be said to run counter to the Islamic Law which mandates that the women should be treated with love and affection.” Further, it said that the same runs counter to the Equality Jurisprudence that has been enacted in the Constitution.Thus it held “A perusal of the Deed of Khulanama & Mubara'at, coupled with the attending circumstances indisputably leads to one single conclusion that the parties had decided to go for dissolution of marriage and that they have accordingly dissolved it.” It added, “The appellant had undertaken and accordingly gave 1/4th share in the property in question which has been rightly the subject matter of impugned decree. An argument to the contrary strikes at the root of law, reason & justice. Countenancing that would be like placing a premium on unconscionability.” The court also opined that India is a party to several International Conventions that promote gender equality and the UN Convention on the Elimination of All Forms of Discrimination against Women is one of them. Conventions of this kind need to animate out domestic law, be it statutory or customary. They have to be kept in view while construing and applying the rules of personal laws like Hindu Law, Islamic Law, etc, the Court held.Dismissing the appeal the court imposed a cost of Rs 10,000 on the appellant. Appearance: Advocate Vitthal S Teli for Appellant.Advocate Vishwanath V Badiger for R1. Citation No: 2024 LiveLaw (Kar) 353Case Title: Bashirahmed AND Surayya & Others Case No: MISCELLANEOUS FIRST APPEAL NO. 101005 OF 2015Click Here To Read/Download Order

Wife's Suit For Declaration Of Right In Ex-Husband's Property Maintainable Before Family Court: Karnataka High Court

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