Judicial Analysis Court Copy Headnote Facts Arguments Court observation

DELHI HIGH COURT
Rekha Palli and Saurabh Banerjee, JJ.
Anjum Nayyar – Appellant
versus
Yavar Ehsan – Respondent
Mat.App. (F.C.) 37 of 2023
Decided on 7.11.2024

Advocates:
Counsel for the Parties:
For the Appellant:Mr. Aman Usman, Advocate alongwith the appellant in person.
For the Respondent:Mr. Chinmaya Sejwal, Advocate alongwith the respondent in person.

IMPORTANT POINTS
(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 under Muslim Personal Law is duly recognised as one of modes of extra-judicial divorce.

Headnote:
Family Courts Act, 1984 – Section 7—Powers of Family Court—Family Court is competent to entertain suit seeking declaration regarding validity of marriage as also regarding matrimonial status of any person—Family Court is empowered to declare not only as to whether parties are lawfully married but also as to whether their marriage stands dissolved by any process envisaged under law—This declaration would include a declaration regarding dissolution of marriage between parties by way of an extra-judicial divorce by any of methods prescribed under Muslim Personal Law—Dissolution of marriage by way of Mubaraat under Muslim Personal Law is duly recognised as one of modes of extra-judicial divorce.(Paras 11 and 13)
Result: Appeal allowed.

JUDGMENT (ORAL)

Rekha Palli, J.—The present appeal under Section 19 of the Family Courts Act, 1984 (the Act) seeks to assail the judgment dated 19.11.2022 passed by the learned Family Court in M.L. No. 11 of 2022. Vide the impugned judgment, the learned Family Court has dismissed the joint petition filed by the appellant and the respondent seeking a decree of dissolution of their marriage in terms of the declaration made by the parties on 24.01.2020 by way of the joint affidavit filed by them as also their prayer for a decree of declaration to the effect that the agreement/declaration dated 24.01.2020 was binding on the parties.

2. As per the brief factual matrix emerging from the record, the marriage between the appellant and the respondent was solemnized on 10.07.1997 at Jamia Nagar, New Delhi as per Muslim Rites and Ceremonies. A Nikahnama (marriage contract) was, accordingly, issued by the Al-Qazi, Betul Qazi, with the meher (dowry) amount fixed at Rs.51,000/-. After the marriage, the parties cohabited at A-1, Press Enclave, Saket, New Delhi and were blessed with two daughters, who are now both major and are residing with the appellant wife.

3. That subsequently, on account of some temperamental differences between the parties, the parties parted ways and started living separately since April, 2016. After efforts for mediation failed, the respondent husband, with the consent of the appellant, pronounced Talaq on 24.01.2020, on which date, the parties issued a joint declaration by way of an affidavit. It is the case of both parties that even though their marriage stood dissolved as per the Islamic Law after the pronouncement of Talaq by the respondent on 24.01.2020, since there was no public record of this dissolution, they filed a joint petition under para (b) and (d) of explanation to Section 7 of the Act.

4. This petition has been rejected by the learned Family Court, by holding that the petition as filed was not maintainable in its present form. Being aggrieved, the appellant has approached this Court. Upon notice being issued in the appeal on 07.02.2023, the respondent has entered appearance and joins the appellant in praying that the impugned judgment be set aside and it be declared that the marriage between the parties stood dissolved on 24.01.2020.

5. Learned counsel for the appellant submits that while dismissing the petition, the learned Family Court has failed to appreciate that under the Muslim Personal Law currently applicable in India, besides the provision for dissolution of marriage by the Court under Section 2 of the Dissolution of Muslim Marriages Act, 1939, commonly known as the ‘judicial divorce’, the concept of extra-judicial divorce under the Muslim Personal Law is also recognised under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. He submits that the appellant’s marriage with the respondent was dissolved as per Mubaraat, which is one of the modes of divorce recognised under the Muslim Personal Law (Shariat) Application Act, 1937 and consequently, the parties had upon dissolution of their marriage through Mubaraat executed a Muabaraat agreement dated 24.01.2020.

6. He further submits that since except for the Mubaraat agreement dated 24.01.2020, the parties do not possess any document issued by any public authority or any Court, they were compelled to approach the Court under Section 7 of the Family Courts Act to seek an official declaration of their marriage having been dissolved. He contends that once the factum of dissolution of marriage of the parties by consent through by Mubaraat stood proved by execution of the Mubaraat agreement on 24.01.2020, no further enquiry was required to be made by the learned Family Court and, consequently, a declaration to the effect of the marriage having been dissolved, ought to have been granted under Section 7(b) of the Family Courts Act.

7. By placing reliance on the decision of the Apex Court in Shayara Bano v. Union of India & Ors. 2017 (9