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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V. BHAVANI SUBBAROYAN, J.
Mohamed Saif Pasha – Petitioner
Versus
Madiha Arif – Respondent
C.R.P.(NPD). No. 161 of 2021
Decided On : 21-04-2021
Central Government Act (The Dissolution of Muslim Marriages Act, 1939) - Muslim Personal Law (Shariat) Application Act, 1937 - Muslim Marriage Act, 1939 - Constitution of India, 1950 - Article 227 – Civil Procedure Code, 1908 - Order VII - Rule 11(d) - Family Courts Act - Section 7(1) - Mubaraat - Dissolution of marriage - Case of petitioner is that petitioner is plaintiff and respondent is defendant in O.S. Sr. and they are married, as per Muslim Personal Law (Shariat) Application Act, 1937 - whether both parties have agreed upon to dissolve such marriage invoking mubaraat - Marriage was solemnized by their parents, as it is an arranged marriage. After said marriage, both parties were not living happily and there was a misunderstanding between them and total peace was lost
Finding of the court: As already mentioned supra, Hon’ble Division Bench of High Court of Kerala at Ernakulaam, had categorically held that ‘mubaraat’ is a form of an extra-judicial divorce based on mutual consent under Islamic law and same is valid, as it remains untouched by Dissolution of Muslim Marriages Act - Court below, in such circumstances, is neither called upon to adjudicate nor called upon to dissolve marriage by decree of divorce - Hence, this Court is of considered view that Family Court is bound to entertain a petition for declaration of status based on mubaraat - In view of above, order passed by learned Principal District Munsif, Alandur in O.S.Sr. is set aside and parties are at liberty to approach concerned Family Court with appropriate jurisdiction.
Result: Present Civil Revision Petition is allowed.
JUDGMENT :
(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 28.09.2020 passed in O.S.SR.No.744/2020 by learned Principal District Munsif, Alandur.)
1. This Civil Revision Petition has been filed to set aside the fair and decretal order dated 28.09.2020 passed in O.S.SR.No.744/2020 by the learned Principal District Munsif, Alandur, by raising various grounds.
2. The case of the petitioner is that the petitioner is the plaintiff and the respondent is the defendant in the O.S.Sr.No.744 of 2020 and they are married, as per the Muslim Personal Law (Shariat) Application Act, 1937 on 01.12.2018. The marriage was solemnized by their parents, as it is an arranged marriage. After the said marriage, both the parties were not living happily and there was a misunderstanding between them and total peace was lost. They started living in separate rooms within the same premises for about 8 months and the respondent had left the matrimonial home on 07.08.2019 and they are residing separately from that day onwards. The family members of both the parties have joined together on 29.07.2019 and they tried to resolve the issue amicably. But the parties could not arrive at a settlement. Hence, on 29.07.2019 they have come to the real fact that both the parties are not willing to live with each other. The respondent has clearly expressed that she did not want to live with the petitioner. As they could not resolve the issue, the parties had decided that they wanted to dissolve the marriage between them. Both the parties have entered into an agreement to dissolve the marriage that held on 01.12.2018 by a MOU dated 24.10.2019 on the following terms:-
“(a) The parties have decided to get separated due to incompatibility.
(b) No reconciliation could be arrived between the parties inspite of best efforts taken by the elders of both the families.
(c) The Defendant while leaving her matrimonial home had taken all the jewels and materials.
(d) No materials of the Defendant are lying in the house of the party of the Plaintiff.
(e) The Defendant has agreed to receive Rs.3,00,000/- from the Plaintiff as full and final settlement and agreed to get separated.
(f) Both the parties agree that they will approach the appropriate court at Chemmenchery where the marriage was solemnized to obtain a decree for divorce in terms of this settlement.
(g) There are no other claims between the parties.
(h) Both the parties confirm that they have not filed any cases both civil and criminal in any court of law or any other forum. Further both the parties agree that they will withdraw all the cases both civil and criminal pending if any.
(i) Both the parties are free to get married and proceed with their life. Both the parties assure that they will not interfere in each other’s life in future.”
3. Since they were not living for a long time, they decided to obtain a decree by presenting the same before the Court below. The suit was filed before the learned Principal District Munsif, Alandur seeking for a prayer to declare that the marriage solemnized between the plaintiff and defendant made on 01.12.2018 is dissolved in terms of MOU dated 24.10.2019 entered between them and pass any other orders suitable.
4. The Court below, after hearing the counsel appearing for the petitioner/plaintiff regarding the matter, has posted the case for maintainability. Suo-motu was re-opened for fresh arguments on the plaintiff’s side and fresh arguments were not heard and the Court below has rejected the said plaint filed by the petitioner/plaintiff. The Court below has returned the said plaint on the ground that how the suit is maintainable by the plaintiff/husband when there is a Family Court in this District, necessary court fees to be paid on plaint, C.D. to be enclosed, mobile number and enrollment number to be furnished, additional set of documents to be filed, copy of plaint to be filed, additional docket sheet to be en
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