Gujarat High Court
Credit: PTI File Photo
Ahmedabad: The Gujarat High Court has ruled that a Muslim marriage can be dissolved through 'Mubaraat', a form of divorce wherein couples can end their marriage through verbal mutual consent without a written agreement in place.
A bench of Justices AY Kogje and NS Sanjay Gowda made the observation while recently setting aside a Rajkot family court order which rejected a suit filed by a Muslim couple seeking dissolution of marriage by 'Mubaraat, a form of divorce by mutual consent.
The bench sent the matter back to the family court and asked it to conclude the proceedings preferably within a period of three months.
Disagreeing with the family court's stand that a written agreement is necessary to dissolve the wedlock, the HC, citing the Quran, Hadith and Muslim Personal Law, noted that such an agreement is not necessary if a Muslim couple seeks dissolution of marriage through mutual consent.
Following a marital discord, a young Muslim couple from Rajkot had approached the family court for declaration of their marriage to have been dissolved by 'Mubaraat', which according to the couple, is recognized as a form of divorce by the Muslim Personal Law (Shariat) Application Act, 1937.
However, the family court rejected the suit holding the petition for declaration of dissolution of marriage by way of 'Mubaraat' is not maintainable in the present form, the HC order stated.
The couple challenged the order in the HC, saying the lower court had committed "an error in holding that Mubaraat Agreement is sine qua non (an essential condition) for entertaining such suit, whereas even as per Shariat, requirement of written agreement is not necessary at all".
"It is argued that the family court has erroneously considered that agreement to part has only to be in Written Form, whereas Shariat does recognize agreement which is not even in written form," the HC observed.
Citing religious texts and Personal Law, the HC noted "There is nothing to suggest that there has to be a written agreement of 'Mubaraat' nor there is a practice prevailing regarding maintaining of the register to record such agreement for mutually dissolved 'Nikah' (marriage)." For the purpose of 'Mubaraat', the expression of a mutual consent for dissolution of 'Nikah' is sufficient to dissolve the marriage in itself, the bench stated.
The bench allowed the couple's petition and set aside the lower court's order and sent the matter back to it "to consider the family suit treating it to be maintainable and to proceed on merits".
"With due regard to the age and future prospects of both the parties, the (high) court deems fit to direct the family court to conclude the proceedings as expeditiously as possible preferably within a period of three months from the date of receipt of the order of this court," the bench said.