IMPORTANT POINT
Mubarat is a recognized form of Divorce under Muslim Personal Law, and Family Courts must accept such agreements for marriage dissolution.

JUDGMENT :

This appeal is preferred against the judgment dated 21.04.2022 of the Principal Judge, Family Court, Bengaluru in O.S.No.184/2021.

2. The parties had approached the Court seeking a declaration of the marriage dated 07.04.2019 solemnized between the parties at Nand Garden, Karbala, Allahabad, Uttar Pradesh as per Mohammedan rites and customs is dissolved vide the Deed of Mubarat dated 03.04.2021.

3. The Family Court however had held that the dissolution of the marriage through Mubarat is one of the mode of dissolution of the marriage but the mutual consent petitions for the dissolution of the Mohamadan marriage is not contemplated under the provisions of the Dissolution of Muslim Marriages Act, 1937. Therefore, the suit was found to be not maintainable and the same was dismissed.

4. Smt.Suzanne Maria Vaz, learned counsel appearing for the appellants submits that the parties are Sunni Muslims and they have entered into Mubarat agreement with their free consent, knowing fully well the consequences thereof. It is submitted that under the provisions of the Dissolution of Muslim Marriages Act, 1937 and Muslim Personal Law (Shariat) Application Act, 1939 read with Section 7 of the Family Courts Act, 1984, the Mubarat Agreement entered into between the parties dissolving their marriage with their full consent and knowledge is liable to be accepted by the Family Court and the declaration thereof was liable to be granted by the Family Court. It is submitted that the finding of the Family Court that the mutual consent petitions are not contemplated and that the suit for declaration of the status of the parties on the basis of the Mubarat Agreement was not maintainable is totally erroneous.

5. The learned counsel appearing for the appellants placed reliance on the decision of the Apex Court in Shayara Bano v. Union of India and others, 2017(9) SCC 1 in the decision of the Kerala High Court in Raseena Pareekunju v. Muhammed Asif, AIR 2021 KERALA 124 as well as the decision of this Court in Asif Iqbal v. Smt.Rafiah @ Feenaz, MFA No.101928 of 2021 (decided on 15.03.2022).

6. It is submitted by the learned counsel appearing for the appellants that Mubarat is a form of Divorce, which is specifically recognized by the Shariat Law and that there is absolutely no impediment to dissolution of a marriage by Mubarat between the parties. It is contended that the Muslim Personal Law specifically recognizes Mubarat Divorce and in case where both parties find it impossible to continue the marriage, which is in the nature of contract under Mohammedan law, there is absolutely no impediment to ending the marriage by Mubarat. It is submitted that the parties have entered into Mubarat agreement since they are perfectly willing to end the marriage between them. It is submitted that the decisions relied on are authority on the point that Mubarat is an accepted form of Divorce under Muslim Personal Law and there is no impediment in the Family Courts recognizing the same and declaring the status of the parties.

7. Section 7 of the Family Courts Act, 1984 provides that the Family Courts shall consider the suits and proceedings of the nature including a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage. The Family Court is empowered also to consider a suit or proceedings for a declaration as to the validity of a marriage or as to the matrimonial status of any person. In the instant case, what was before the Family Court was a suit seeking a declaration of the status of the parties on the basis of the Mubarat Agreement entered into between them.

8. The Apex Court in Shayara Bano's case (supra), has considered the concept of Divorce in Muslim Personal Law and its relationship to the Dissolution of Muslim Marriages under the enactments of 1937 and 1939.