Family Court Empowered To Consider Muslim Couple's Plea For Declaration Of Mutual Divorce By 'Mubarat': Gujarat High Court Reaffirms

The Gujarat High Court has reiterated that a family court is competent and empowered to consider application for dissolution of marriage based on divorce by mutual consent which is also known as Mubarat agreement executed between Muslim couple.A division bench of Justice AY Kogje and Justice Nisha M Thakore referred to the high court's decision in Asif Daudbhai Karva & Anr. Versus None (2025) and noted that the court had in detail, considered the dissolution of Muslim marriage by agreement.Referring to the 2025 decision, the bench said it is settled that Family Courts are vested with the jurisdiction to declare the marital status of parties, even in case of mutual consent divorce in the form of Mubarat executed under the Muslim Law without having a written agreement. It further noted that in the present case the wife had filed an affidavit before the bench which had ascertained her free will of having entered into the mutual consent divorce deed. The bench thereafter noted:"Court has further considered Section 7 of the Act of 1984, particularly, Clause-b of the explanation to Section 7, which confers the jurisdiction upon the Family Court to declare a status of the litigation with regard to the marriage which pre-existed. Referring to the decision of the Karnataka High Court in case of Shabnam Parveen Ahmad v/s. Mohammed Saliya Shaikh passed in Miscellaneous First Appeal No.4711 of 2022 (SMA) dated 26.03.2024, has agreed with the view taken that, for a declaration as to the dissolution of marriage based on agreement of Mubarat, the Family Court is competent and empowered to consider such application for divorce by mutual consent. Reference is also made to the guidelines issued by the Delhi High Court on the issue of Mubarat. Thus, this Court has quashed and set aside the judgment and order passed by the learned Family Judge, refusing to entertain the application seeking declaration, being preferred by the parties for declaration on the ground of mutual consent divorce. Considering the aforesaid principles in the facts of the present case, we are inclined to accept the prayer sought for in the original proceedings". The court was hearing the husband's appeal, through his father the power of attorney holder, challenging family court's order dismissing his plea under Section 7 Family Courts Act read with Section 34 of the Specific Relief Act seeking a declaration of divorce against the respondent- wife. The relief was sought on the ground that their marriage has been dissolved, in view of the mutual divorce deed executed freely and voluntarily on 20.06.2022 in the presence of two witnesses.BackgroundThe appellant had submitted before the family court that the couple's Nikah (marriage) was performed between the parties on 19.03.2022, as per Muslim Shariat and the Rituals, in the presence of family, friends and elders as well as the Kazi in village Kanjari, District Kheda. Subsequently, their marriage was also registered with the Registrar of Kanjari Nagarpalika vide registration dated 23.03.2022. After marriage, the husband had travelled to London, U.K. for studies. The wife had earlier stayed at the marital house, but had later gone back to her parental house. Initially, the parties remained in contact with each other through telephone and mobile; however, realizing that there was lack of compatibility between them, they had mutually decided to part ways. As per Muslim Shariat Laws, the parties had entered into a mutual divorce deed–Mubarat on 20.06.2022, in the presence of two witnesses. It was pleaded before the Family Judge that the document was entered in the register maintained by the Notary on 20.06.2022. It was urged before the Family Court that the couple ceased to be married, and sought for declaration of dissolution of marriage. Even though notice was served to the wife, she had chosen not to appear before the Family Judge. The family court objected to the conduct of the husband, by noting that the petition was preferred through the power of attorney- the appellant's father, whereas the examination-in-chief affidavit has been submitted under the signature of the husband himself followed by the examination-in-chief affidavit of the father.The family court observed that there is nothing on record to suggest that on which date the power of attorney was relieved from the authority to pursue the proceedings and, if so, there is no pleadings in the petition as to how the Family Court would have "jurisdiction to conduct the proceedings". It further noted that though mutual divorce deed dated 25.03.2022 executed by the parties has been produced on record, the respondent-wife had failed to appear.The family court held that the service of the notice to the respondent was not proper. The Court also took serious note of the fact that no photographs of the parties at the time of the marriage, had been produced on record, and therefore, it cannot be ascertained as to...

Family Court Empowered To Consider Muslim Couple's Plea For Declaration Of Mutual Divorce By 'Mubarat': Gujarat High Court Reaffirms

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