Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(All) 2109

IN THE HIGH COURT OF ALLAHABAD AT LUCKNOW BENCH
Vivek Chaudhary, Om Prakash Shukla, JJ.
Arshad Husain – Appellant
Versus
Shahneela Nishat – Respondent
First Appeal No. 111 of 2019
Decided On : 06-12-2024

Advocates:
Advocate Appeared:
For the Appellants : Shafiq Mirza, Ali Akhtar Zaidi
For the Respondent: Mohd. Mustafizul Haq

Mutual consent under Muslim Personal Law allows for divorce without judicial intervention if both parties agree, as established in the case.

Headnote:(A) Family Courts Act, 1984 - Section 19 - Muslim Personal Law (Shariat) Application Act, 1937 - Section 2 - Appeal against dismissal of declaration case for matrimonial status - The Family Court dismissed the case due to lack of evidence for triple talaq and absence of reconciliation efforts. The parties later entered into a mutual agreement for divorce. (Paras 2, 3, 4, 11, 12)

(B) Divorce by mutual consent - Under Muslim Personal Law, a marriage can be dissolved by mutual agreement, known as Mubara'at, which does not require judicial intervention if both parties consent. (Paras 7, 8, 9)

(C) Court's role in mutual divorce - The court must verify the mutuality and voluntariness of the agreement and endorse the dissolution without further inquiry if satisfied. (Paras 9, 10)

Facts of the case:
The marriage was solemnized on 12.1.2002. The husband claimed the wife had an affair and filed for a declaration of matrimonial status after giving triple talaq. The Family Court dismissed the case due to procedural deficiencies.

Findings of Court:
The appeal is disposed of in terms of the mutual agreement, granting a decree of divorce.

Issues: The main issues were the validity of the triple talaq and the mutual agreement for divorce.

Ratio Decidendi: The court found that the mutual agreement was valid and should be recognized, emphasizing that the Family Court's role is limited to verifying mutual consent.

Result: The decree of divorce is granted, and the matrimonial status is declared as 'divorced'.

Judgement Key Points

Case Summary

Parties and Proceedings: Appeal under Section 19 of the Family Courts Act, 1984 by husband (Arshad Husain) against dismissal of Declaration Case No. 214 of 2019 by Family Court, Lucknow, seeking declaration of matrimonial status post-alleged triple talaq. Marriage solemnized on 12.1.2002. (!) (!) (!)

Family Court Findings: Case dismissed at admission stage for lack of evidence on triple talaq (no proof of pronouncements during non-menstrual periods or prior reconciliation efforts). (!) (!)

Mutual Agreement (Mubara'at): Parties entered voluntary mutual divorce agreement dated 15.6.2024, filed in related Section 125 Cr.P.C. proceedings. Husband paid Rs. 30,00,000/- in full to wife in three installments; both parties to withdraw all cases; marriage to dissolve by consent. Both counsels confirmed agreement, payment, and consent during appeal hearing. (!) (!) (!)

Legal Principles on Divorce under Muslim Personal Law: - Governed by Muslim Personal Law (Shariat) Application Act, 1937 (Section 2), recognizing forms like Mubara'at (mutual consent divorce). (!) - Mubara'at allows dissolution by mutual agreement without judicial intervention, effective upon clear consent of both spouses; does not impact maintenance obligations per agreement. (!) - Court verifies only mutuality and voluntariness; if satisfied, endorses dissolution and declares parties "divorced" without further inquiry. (!)

Court's Decision: Appeal allowed; Family Court order set aside. Decree of divorce granted in terms of Mubara'at dated 15.6.2024; matrimonial status declared "divorced". No remand needed as facts undisputed and parties separated. (!) (!) (!) (!) (!)

Ratio: Mutual consent divorce under Muslim Personal Law (Mubara'at) is valid upon verification of voluntary agreement; court limited to endorsement if consent confirmed.

JUDGMENT :

1. Heard Shri Ali Akhtar Zaidi, learned Counsel representing the appellant/husband and Shri Mohd. Mustafizul Haq, learned Counsel representing the respondent/wife.

2. This appeal under Section 19 of the Family Courts Act, 1984 has been filed by the husband/appellant, seeking to quash the judgment and order dated 4.7.2019 passed by the learned Principal Judge, Family Court, Lucknow, whereby Declaration Case No. 214 of 2019 filed by the husband/appellant for declaration of matrimonial status of the parties has been dismissed at the admission stage.

3. Facts of the case are that the marriage between the appellant and the respondent was solemnized on 12.1.2002 in accordance with Islamic Rites and Rituals. It was the case of the appellant that after marriage, the behaviour of his wife was not good as his wife was having affair with a police officer, on account of which his wife visited her parental house frequently. With the connivance of the said police officer, his wife had lodged frivolous complaint against him and her behaviour became cruel. Ultimately, on 2.7.2018, she went to parental home and since then, she is living there only. Despite efforts made by him for reconciliation, settlement between them was not arrived and ultimately he gave triple talaq to his wife in accordance with muslim law. In this background, the appellant had instituted the declaration case, bearing No. 214 of 2019, seeking to declare the matrimonial status of the parties, before the Family Court, Lucknow.

4. The learned Family Court, Lucknow, heard the aforesaid declaration case at admission stage and has returned a finding that though the husband claimed to have given triple talaq in the month of March, April and May, but there was neither any endorsement to the fact that first, second and third talaq were given by the husband during the non-menstrual period of the wife nor there was any endorsement to the fact that any effort for reconciliation preceded Talaq. By recording these findings and placing reliance upon the judgment of the Apex Court rendered in Shayara Bano v. Union of India, (2017) 9 SCC 1, the learned Family Court has dismissed the declaration case vide judgment and order dated 4.7.2019 at the admission stage, which is assailed in the present appeal.

5. During the hearing of the present appeal, learned Counsels for the parties have drawn attention to Annexure SSA-1 of the second supplementary-affidavit, which is a Mubara'at (mutual agreement) dated 15.6.2024 entered into between the parties. This mutual agreement was also filed in the proceedings under Section 125 of the Cr.P.C. initiated by the respondent (wife), bearing Case No. 358 of 2018. The agreement provides that both parties will withdraw all pending cases between them, and the marriage shall be dissolved by mutual consent, subject to the payment of Rs. 30,00,000/- (Rupees Thirty Lakhs) by the husband to the wife in three installments. Learned Counsel for the appellant submits that both the parties are living separately and the husband has already paid the entire sum of Rs. 30,00,000/- in three installments and requests that the present appeal be disposed of in terms of the mutual agreement, thereby dissolve the marriage between the parties by consent.

6. Mohd. Mustafizul Haq, learned Counsel representing the respondent/wife does not dispute the aforesaid mutual agreement dated 15.6.2024 and states that Rs. 30,00,000/- has been paid to the wife by the husband/appellant in three installments and the respondent has no objection to declare the marriage of the parties dissolve in terms of the mutual agreement dated 15.6.2024.

7. Muslim Personal Law (Shariat) Application Act, 1937, governs marriage and divorce for Muslims in India. Section 2 of the Act explicitly recognizes various forms of divorce, including Mubara at, Khula, Talaq and Faskh.

8. Under Shariyat Law, a marriage can be dissolved by mutual agreement between the husband and wife. This mutual dissolution may take the f

Click Here to Read the rest of this document