Making it clear that a court dealing with writ petitions can only decide on questions of law and not questions of facts, the Madras High Court dismissed a plea moved by a Muslim woman seeking to set aside a ‘Khulanama’ (a document expressing consent for divorce) allegedly obtained by her husband in a fraudulent manner.
According to S. Basheria, a mother of three, her husband T.C.A. Mohamed Yusuf had obtained divorce through an authoritative verdict (fatwa) from the Government Chief Kazi, by showing a fake ‘Khulanama’ dated June 9, 2006, allegedly written by her.
He subsequently married another woman.
In 2007, when Ms. Basheria approached the HC seeking to call for records from the Government Chief Kazi in connection with the divorce granted based on the ‘Khulanama’ and to pay a compensation of Rs. 7 lakh, a single judge of the court dismissed the plea pointing out that a case of forgery was pending before a trial court. Hence, the court was not inclined to entertain the writ petition. “The rights of the petitioner are relegated to be renewed after the conclusion of the criminal trial. At this stage, the writ petition is premature and no relief can be given to the petitioner,” the single judge said.
Assailing the order, Ms. Basheria moved the present appeal. The appellant contended that the single judge had failed to take note of the life of the appellants, who had been stranded by the act of her husband.
She argued that the ‘Khulanama’ was a forged document and by virtue of the divorce certificate issued by the Government Chief Kazi, the appellant and her children were deprived of their rights. Denying her allegations, the Special Government Pleader submitted that as per Muslim law, the ‘Khulanama’ was valid if it contained a proposal and acceptance from the wife and the husband respectively.
Validity issues
He added that the Government Chief Kazi was not a competent person to declare Khulanama valid or forged.
Pointing out that allegations made by the appellants were disputed questions of fact, a Division Bench of Justices Huluvadi G. Ramesh and S. Vaidyanathan said: “It is well settled law that the disputed questions of fact cannot be gone into by this court under Article 226 of the Constitution.”
Basheria had argued that the fake Khulanama deprived her and her children of their rights
