IMPORTANT POINT
Divorce – Family Court has jurisdiction to declare status of litigation with regard to marriage which pre-existed.

JUDGMENT (ORAL)

This appeal is preferred jointly by husband and wife, as appellants against order dated 19-04-2025 below Exh-1 in Family Suit No.30 of 2025, by which, family suit has been dismissed treating the same to be not maintainable.

2. It is the case where the appellants have approached the Family Court for declaration of their marriage to have been dissolved by following mode of their personal law recognized by the Muslim Personal Law (Shariat) Application Act, 1937 being ‘mubaraat’.

3. The facts in brief are that the Marriage between the parties has been solemnised between the parties as per Islamic Shariyat and in accordance with the customs and rituals of their caste at Vil.- Chhajana, Dist.-Madhubani, Bihar between the Appellant No. 01 and 02 on date: 15/03/2021. Thus, the Appellant No.01 and Appellant No.02 are legally wedded husband and wife.

3.1 Out of this wedlock three children have been born 1) Orhan, aged about 3 years; 2) Uzair, aged about 1 year; and 3) Abrar, aged about 7 months. After the said marriage the Appellant No. 02 has cohabited and lived with Plaintiff No.01 at Rajkot, and currently the permanent residence of both the appellants is at Rajkot. After marriage, there occurred a differences which increased day by day up to the extent that the Appellants felt it impossible to live with each other. Due to the arising conflicts on account of difference of opinions, the Appellant No. 02 had to leave her matrimonial home and since more than one year the Appellants have been living separately. The Appellants have tried to solve the problems by themselves, even the elders and family members of both the Appellants have tried enough for the compromise; but all in vain, as the conflicts arose up to that limit that, both the Appellants cannot sustain their married life further with each other. As the Appellants have not been able to live together and both the Appellants have mutually agreed that their said marriage be dissolved in the interest of future to come.

4. As the Appeal is preferred jointly by husband and wife and the issue requires consideration on the law point of maintainability, the Court by its order dated 10-06-2025 appointed learned AGP to assist the Court in this regard.

5. Learned Advocate for the appellants has argued that an error is committed by Family Court in holding that the petition for declaration of dissolution of marriage by way of ‘mubaraat’ is not maintainable in the present form.

6. It is submitted that Section-7 of the Family Courts Act confers jurisdiction upon Family Court for declaring the status of the marriage and therefore, cause of action of the appellants squarely fell within jurisdiction of the Family Court despite the Family Court has not entertained the suit.

7. Learned Advocate for the appellants has argued that an error is committed by the Family Court in holding that ‘Mubaraat Agreement’ is sine qua non for entertaining such suit, whereas even as per Shariat, requirement of written agreement is not necessary at all. It is only between Muslim- husband and wife, where they jointly come to an Agreement that the marriage can be dissolved by process of ‘mubaraat’.

8. It is argued that Family Court has erroneously considered that Agreement to part has only to be in Written Form, whereas Shariat does recognized, Agreement which is not even in written form. It is submitted that in any case, whether the Agreement to dissolve the Muslim marriage exist or not is also triable issue and it cannot be said that the suit for such declaration is not maintainable.

9. Learned AGP has submitted that impugned order regarding maintainability is justified particularly pointing out that the Family Court has ordered that petition is not maintainable in the present form and therefore, it cannot be said that suit filed by the appellant itself is not maintainable. It is still open for appellants to file the suit after complying with necessary formalities.

10. In this connection, she has drawn