JUDGMENT
Amit Rawal, J.
This judgment shall dispose of three petitions, Mat.Appeal No.18/2021 titled as Aneesha v. Navas. preferred against the judgment and decree dated 22/01/2020 in O.P(Others)No.594/2015 on the file of the Family Court, Alappuzha whereby the claim of the appellant/wife for return of the gold ornament has been disallowed and a counter claim of the husband for return of 16 sovereigns has been allowed; Mat.Appeal No.170/2021 preferred against the judgment and decree dated 20/08/2018 rendered in O.P.No.209/2015 of the Family Court, Alappuzha preferred by the wife for setting aside the talak dated 09/01/2015 as it did not suffice the requirement of the Muslim Law and as well as the condition/guidelines given by the Division Bench of this Court in Asbi vs. Hashim M.U, 2021(6) KLT 292 and Mat.Appeal No.962/2018 preferred by the wife against the aforesaid judgment and decree dated 20/08/2018 dismissing the claim with regard to the restitution of conjugal rights.
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2. It is most unfortunate that after performance of the talaq and arriving at some settlement, parties again have been litigating in the court. The aforementioned observations are based upon events which have occurred prior to filing of the present cases.
3. The preface of the matter in past was that the marriage between Navas and Aneesha was performed on 28/05/2006. Out of the wedlock, two children were born. At the time of the marriage, husband had given certain mehar and the parents of the wife stated to have given 45 sovereigns of gold, two bangles and cash amount of ₹3,50,000/-. Matrimonial discord and disputes between the parties resulted into registration of case under Section 498A IPC. Wife preferred O.P.No.150/2013 for claiming the return of the gold ornaments. In the aforementioned pending O.P., a compromise was arrived at between the parties resulting into submission of M.C.No.96/2013. As per the terms and conditions of the compromise, wife had to withdraw the claim with regard to return of the gold ornaments in O.P.No.150/2013 and the issue with regard to the maintenance and custody of the children was also settled including the settlement with regard to the four criminal cases. Husband had agreed to give maintenance of ₹5,000/- to the wife. Thereafter the
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wife sent a legal notice to the husband for restitution of conjugal rights. On receipt of the notice, husband pronounced talaq to the wife three times.
4. It is in this background of the matter, three cases as noticed above has been filed. Learned trial court dismissed O.P.No.594/2015 on the legal ground that if at all there was any case in favour of the wife, the remedy would have been to challenge the compromise on certain conditions as party had acted upon the terms and conditions of the compromise. Even the claim with regard to the gold ornaments was given up by withdrawing O.P.No.150/2013. No independent evidence was led by the wife to substantiate her claim with regard to the gold ornaments.
5. Counsel representing the appellant in Mat.Appeal No.18/2021 arising out of O.P.No.594/2015 submitted that since the wife was of the belief that the claim would revive and in case this Court finds that certain evidence and documents have not been placed on record, Mat.Appeal may be remanded with a liberty to revive the case and permit the wife to lead evidence subject to other side also giving the same opportunity.
6. Counsel appearing on behalf of the wife in Mat. Appeal No.962/2018 submitted that no doubt the court had partly allowed the O.P. by holding the talaq to be illegal and against the guidelines and the law laid
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on by the Division Bench of this Court (supra), but equally so, the court was to examine the history of the case for, parties have been litigating since long and wife wanted to reside with the husband. In this back ground, the matter was required to be decreed in its entirety by granting the decree of restitution.
7. Learned counsel representing the husband in Mat.A.No. 170/2021 submitted that the judgment and the decree of the trial court in rejecting the talaq is based upon surmises and conjectures without noticing the fact that the compromise arrived at was an act of mediation as party never lived together and even if the talaq is not as per the strict guidelines laid in the judgment supra, strict approach ought not to have been followed. There is no proof on record that at any point of time after the compromise, parties lived together. Testimony of RW1/husband has been brushed aside though he categorically stated that there were two conciliation and mediation talks on 12thand 18thof December 2014.
8. On the other hand, the learned counsel appearing on behalf of the wife refuted the arguments of the counsel for the husband that Ext.A1 talaq nama did not contain any such reference of conciliation or mediation proceedings. It is an afterthought and any assertion without reference to
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documents would be meaningless.
9. We have heard the learned counsel for the parties and appraised the paper book and of the view that there is no cause and merit in the arguments of the counsels representing the appellants in all the three matters. It is a matter of record that prior to the present litigation as noticed above, there was a compromise in pending O.P No.150/2013 which was filed through M.C.No.96/2013. The said compromise has been exhibited in the proceedings in O.P.No.594/2013 as Ext.B1. The terms and conditions read over to us during the hearing and looked by us revealed that parties have agreed to live separately and husband had agreed to pay maintenance of ₹5,000/- to the wife. Over and above, the wife had agreed to withdraw the O.P No.150/2013 by not pressing the claim for return of the gold items; and four crime cases against the husband and his brother was also withdrawn. When the parties deviated from the terms and conditions of the compromise, the remedy for the parties was to seek the recall of the compromise by moving the Court where M.C.No.96/2013 was filed, but no such exercise had been undertaken. It is also settled law that the second petition claiming the same and identical relief sought in the previous petition is not maintainable and hit by the doctrine akin to res
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judicata or Order II Rule 2 even if there is no adjudication on merits. Even no independent and direct evidence was led in O.P.No.594/2013 to establish the entrustment of the gold ornaments. As regards the argument of the husband of rejecting the talaq nama the law with regard to seeking declaration and granting of the talaq nama has been pondered by the Division Bench of this Court in the judgment ibid. Wife has not signed the talaq nama despite having been approached many times. Talaq nama was pronounced in the presence of the witnesses, but the witnesses gave different/contradictory versions. No witnesses have been examined to prove the conciliation and mediation. The conciliation and mediation attempted to be justified by way of compromise cannot be a ground for sufficing the requirement of talaq nama and the ratio decidendi culled out in the judgment cited supra. Even the other formalities as per the Muhammedan Law were also not complied with. Talaq nama, Ext.B1 has also not been proved by direct and cogent evidence. All these factors weighed in the mind of the court, thus we do not find any force in the argument of the husband that the talaq nama was in accordance with law.
10. As far as the right of restitution is concerned, no provisions of law is provided in the Muslim Law that wife is entitled to restitution of
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conjugal rights because the marriage between the husband and wife belonging to a Muslim religion and caste, is a contract. For the reasons aforementioned, we are of the view that the findings rendered by the courts below in both O.P.No.209/2015 and O.P No.594/2015 are perfectly legal and do not call for any interference and the appeals are dismissed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
C.S.SUDHA
JUDGE
Jms