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IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, Neena Bansal Krishna, JJ.
Shahid Ahmad - Appellant
Versus
Tahajiva - Respondent
MAT.APP. (F.C.) 134 of 2023
Decided On : 20-09-2023
Mubarat - Dissolution of Muslim Marriage Act - The court held that the marriage between the parties already stood dissolved by way of Mubarat as per Muslim Law, as recorded in the settlement, and in the interest of the welfare of both parties.
Fact of the Case:
The appellant and the respondent filed a petition for dissolution of marriage under Section 2(ix) of the Dissolution of Muslim Marriage Act, 1939 by way of Mubarat (Mutual Consent). The learned Judge, Family Court dismissed the petition as the date of divorce was not specified.
Finding of the Court:
The court, after considering the submissions made by the parties and the settlement deed, held that the marriage between the parties already stood dissolved by way of Mubarat as per Muslim Law and disposed of the appeal accordingly.
Issues: The main issue was whether the marriage between the parties already stood dissolved by way of Mubarat as per Muslim Law, as recorded in the settlement.
Ratio Decidendi: The court relied on the settlement deed and the submissions made by the parties to conclude that the marriage between the parties already stood dissolved by way of Mubarat as per Muslim Law.
Final Decision: The appeal was disposed of, holding that the marriage between the parties already stood dissolved by way of Mubarat as per Muslim Law, while taking on record their undertaking that they shall remain bound by the said Settlement.
JUDGMENT (Oral)
1. The Appeal under Section 19 of the Family Courts Act, 1984 has been preferred against the impugned Order/Judgment dated 18.04.2023 of the learned Judge, Family Courts dismissing the petition filed seeking the following relief:
"Pass a Decree of declaration thereby declaring the Divorce in between the petitioners by way of Mubarat (Mutual Consent) in terms of Section 2(ix) of the Dissolution of the Muslim Marriage Act, 1939 thereby dissolving the marriage between the petitioners".
2. The appellant and the respondent herein have filed a petition for dissolution of marriage under Section 2(ix) of the Dissolution of Muslim Marriage Act, 1939 by way of Mubarat (Mutual Consent). It is stated in the petition that the marriage between the parties was solemnized on 19.06.2019 according to Muslim rites and customs and no child was born from their wedlock. Due to the temperamental differences, disputes arose between the parties and they have been living separately since April, 2020. It is stated that the respondent had filed a FIR bearing No. 97/2021 under Sections 498A/406/34 IPC at P.S.Geeta Colony against the appellant and his family members. With the intervention of the family, friends and respectable members of the society, they have arrived at a settlement on 20.02.2023 wherein, they have agreed to various terms and conditions of settlement including dissolution of their marriage in accordance with Shariat Law i.e. mutually through Mubarat. Consequently, the appellant had given her the divorce which was accepted by the respondent. It was further agreed that they would file a petition before the Court for declaring that they have taken divorce by Mubarat (Mutual Consent). In addition, the appellant paid Rs.2,90,000/- for settlement of all the claims towards stridhan and permanent alimony, maintenance past, present and future, Mehar etc. Rs.1,00,000/- was to be paid at the time of grant of divorce while the balance fund of Rs.1,90,000/- was agreed to be paid by the appellant-husband to the respondent-wife at the time of quashing of FIR registered against the appellant and his family members.
3. The appellant and the respondent pursuant to the settlement dated 20.02.2023 filed a petition before the learned Judge, Family Court for Declaration.
4. The learned Judge, Family Court relied upon the judgment titled as X and Ors. Vs. Y and Ors. passed by the High Court of Kerala, wherein, it was stated that the Family Court can endorse an extra judicial divorce to declare a marital status of a person in the matters of Talaq, Khula, Mubarat and Talaq-e-Tafwiz. It was held that the Family Courts shall entertain such applications moved by either of the party or both parties to declare the marital status of such parties and in the matter of unilateral dissolution of marriage invoking Khula and Talaq, the scope of inquiry before the Family Courts is limited. In such proceedings, the Court shall record the Khula or Talaq to declare the marital status of the parties after due notice to each other. The Family Court shall refrain from adjudicating upon such extra-judicial divorce unless it is called upon to decide its validity in appropriate manner and it shall make an endeavour to dispose of the case treating it an uncontested matter without any delay by passing a formal order deciding the marital status.
5. Learned Judge, Family Court relying upon the said judgment, held that in the entire petition, it was nowhere mentioned by both the parties that their marriage already stood dissolved by mutual consent i.e. by way of Mubarat as per MoU filed with the petition. In view of the date of divorce having not been specified, declaration of marital status could not be given. Consequently, the petition was dismissed by the learned Judge, Family Court.
6. Aggrieved, the present Appeal has been preferred by the appellant.
7. During the course of arguments, it has been pointed out that at the time of settlement on 20.02.2023, the divorce was granted
The main legal point established in the judgment is that the marriage between the parties already stood dissolved by way of Mubarat as per Muslim Law, as recorded in the settlement.
(1) Family Court is competent to entertain suit seeking declaration regarding validity of marriage as also regarding matrimonial status of any person.(2) Dissolution of marriage by way of Mubaraat un....
Mubarat is a recognized form of divorce by mutual consent under Muslim Personal Law, and Family Courts are duty-bound to accept such agreements and declare the dissolution of marriage as agreed betwe....
Mubarat is a form of divorce by consent of both parties which is well recognized in Muslim Personal Law.
The court affirmed that extra-judicial divorce via Mubaraat is valid and must be recognized by Family Courts, empowering them to declare marital status under Section 7 of the Family Courts Act.
Mutual consent under Muslim Personal Law allows for divorce without judicial intervention if both parties agree, as established in the case.
A mutual consent divorce under 'mubaraat' in Muslim law is valid without a written agreement, affirming Family Court's jurisdiction to declare marital status under Section 7 of the Family Courts Act.
The Family Court has jurisdiction to declare the dissolution of a Muslim marriage under mutual consent, as established by ‘mubaraat’, even post legal dissolution.
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