The Family Court has jurisdiction to declare the dissolution of a Muslim marriage under mutual consent, as established by ‘mubaraat’, even post legal dissolution.

ORDER :

A.Y. KOGJE, J.

1. Present First Appeal is preferred under Section 19 of the FAMILY COURTS ACT , 1984 against judgment and decree dated 19-03- 2025 passed in Family Suit No.3012 of 2024 passed by the Family Court No.4 at Ahmedabad.

2. By the impugned judgment and decree, the plaint, which was filed for dissolution of Muslim marriage under Section 2 (ix) of the Dissolution of Muslim Marriages Act, 1939, came to be rejected under Order-7, Rule-11 of CIVIL PROCEDURE CODE , 1908. While doing so, the Family Court has concluded that the appellant-wife has not stated exact ground on which, she seeks dissolution and when marriage is already dissolved under Muslim Law, it is not permissible for the Family Court to pass decree of dissolution of the same marriage.

3. The Court has held that the Family Court is not for certification of talaq / divorce, which is already legally executed. Therefore, unless statue provides for the Family Court to dissolve marriage between the parties under the Muslim Law or any other form of marriage and as there is no law to dissolve the muslim marriage by way of decree, when the marriage is already legally dissolved under the Muslim Law, suit is not maintainable under Section 2 (ix) of the Dissolution of Muslim Marriages Act, 1939 and therefore, in exercise of Order-7, Rule-11 of CIVIL PROCEDURE CODE , 1908, the plaint is rejected.

4. The parties before the Court have unanimously agreed to dissolve the Muslim Marriage (Nikah) between them and the facts in brief are as under:

4.1 The appellant got married with the respondent on 02.01.2015 at Ahmedabad as per rites and rituals of Muslim Shariat and they were blessed with two sons, Ibrahim and Muhammad. Due to irreconcilable differences in thoughts, habits, and preferences, the couple was unhappy and unable to live together, so they started living separately since July, 2022, and all attempts for their reconciliation failed.

4.2. It has been further submitted by the appellant that on 10.03.2024, the opponent pronounced "Talak-e-ehsan" (Islamic divorce), which the appellant accepted and she completed her Iddat period from 10.03.2024 to 26.06.2024. The opponent paid Rs.77,000/- as maintenance during this period and had already settled the Mehar amount at the time of marriage.

4.3. It has been further submitted by the appellant that after having lived apart for 2.5 years, both the parties had agreed to dissolve their marriage. It has been agreed that the appellant would have sole custody of the children and the opponent would pay Rs.11,000/- monthly per child for their upbringing (increasing 10- 15% annually with inflation) and covering all educational expenses (school fees, books, uniforms, gadgets, etc.). The opponent shall have visitation rights on weekends, holidays, and vacations, coordinated with the appellant’s convenience. Both parents will jointly monitor the children's progress and attend school-related activities.

4.4. It has been further submitted by the appellant that the opponent has undertaken to fully fund the children's education, extra-curricular activities, birthdays, and travel needs. Additionally, he will pay the appellant Rs.15,000/- as monthly maintenance (increasing 108 yearly) until she remarries or improves her financial situation. He owes her Rs.7,70,000/- for gold and credit card expenses, of which Rs.5,00,000/- has been paid, with the remaining Rs.2,70,000/- due by 22.12.2024. Both parties also agreed not to pursue legal action against each other.

5. The Muslim Law recognizes divorce (talaq) through various modes, two of the modes which are recognized are ‘khula’ and ‘m