Fazi vs Mohamad Chopan

The parties to this revision petition, namely, Mst. Fazi, the petitioner and Mohamad Chopan, the respondent, who happened to be wife and

husband respectively, appointed Mufti BashirudDin, Mufti Azam as the arbitrator to settle the dispute as to whether or not Mst. Fazi could claim

divorce for her husband on the ground that the latter's father had forcibly committed sexual intercourse with her as a consequence whereof she had

become pregnant. The arbitrator entered upon the reference and declared Mst. Fazi ""Haram"" on her husband Mohamad Chopan, annulling thereby

the marital relations existing between them.

Mst. Fazi later on moved an application for making the award a rule of the court and passing a decree in accordance therewith in the court of

Munsiff Magam. The parties appeared in the court get the award filed in it and the court after considering the objection raised by them, passed a

decree annulling the marriage.

Aggrieved by the aforesaid order, Mohamad Chopan challenged the same in appeal before Sub Judge (CDM) Srinagar. The appellate court

being of the opinion that the trial court had failed to advert itself to the fact as to whether or not the arbitration agreement had been actually signed

by Mst. Fazi, which in its opinion was sine qua non for a valid reference to the arbitrator, set aside the order of the trial court refusing to set aside

the award, and remitted the case back to it after framing two additional issues which read as under:

Whether the agreement appointing the defendant No. 1 as sole Arbitrator executed on 2821977 been executed by the parties to the suit and its

effect ? OPP

2 As the plaintiff Mst. Fazi has admittedly remarried during the subsistence of these proceedings, so what is its effect upon the suit ? OPP

Mst. Fazi now feels aggrieved by this order, hence this revision petition

I had heard yesterday the learned counsel for the petitioner alone and adjourned the case for today as no one had appeared before me on

behalf of the respondent.

Arbitration agreement is defined by Cl (a) of section 2 of the J&K Arbitration Act, 2002, means a written agreement to submit present of future

differences to arbitration whether an arbitration agreement, according to this section, is that it cannot be an oral one but has to be reduced to

writing. It is not necessary that such agreement once reduced to writing must else be signed by the parties to it. This interpretation of sec. 2 (a) is

well known well established.

It is not in dispute that there was an agreement in writing to refer the dispute to an arbitrator, what had been disputed before the lower appellate

court however, was that it was not established beyond doubt as to whether all the parties to the agreement had signed the same. To be more

precise, the contention raised on behalf of the appellant was that it could not be said with reasonable certainty as to whether or not the agreement

which exfacia bore her signature had in fact been signed by Mst. Fazi as well. There was however, no dispute in so far as the signature of other

parties to the agreement were concerned. This contention having prevailed with the lower appellate court, it accepted the appeal, and remanded

the case back to the trial court for its disposal a fresh after framing two additional issues

The view taken by the lower appellate court, there can be no manner of doubt, m palpably absurd. The parties had admittedly reduced the

agreement to writing. This was the only requirement of a valid arbitration agreement contemplated by sec 2 (a). It is common ground that the

parties had taken part in the proceedings before the arbitrator, which eventually pulminated into an award favouring Mst. Fazi. Mst. Fazi is not

aggrieved of the award. She had never questioned the validity of the arbitration agreement, nor had she even denied her signature on it. How could

have than Mohd. Chopan challenged the validity of the agreement ard what justification had the lower appellate court has obviously been more

loyal to Mst. Fazi than Mst. Fazi herself. It has been so, videntlo to find out some way, somehow or other, to accept the appeal. Its judgment not

only exhibits total ignorance of law, but also smachkes of a tainted judicial approach.

In the result, I accept the revision petition, set aside the order passed by the lower appellate court and restore that passed by the trial court

making the award a rule by the court, Since the respondent has not appealed to resist the revision petition, there shall be no order as to costs. The

observations made against the lower appellate court shall be kept on the personal file of the concerned judicial officer,