Family Courts Are Duty Bound To Accept 'Mubarat' Divorce Of Muslim Couple: Gujarat High Court

The Gujarat High Court has reiterated that when marriage between a Muslim couple, governed by the Shariat Law, is dissolved by Mubara'at Agreement, then Family Courts are duty bound to accept the agreement of the parties and to declare the dissolution of the marriage as agreed between parties. [2026 LiveLaw (Guj) 171]A division bench of Justice Ilesh J Vora and Justice RT Vachhani in its order said:"...when the marriage between two persons, who are governed by the Shariat Law, is dissolved by Mubara'at Agreement, the Family Courts are duty bound to accept the agreement of the parties and to declare the dissolution of the marriage as agreed between the parties. The High Court of Karnataka and other High Courts (Shabnam Parveen Ahmad vs. Mohammed Saliya Shaikh (Miscellaneous First Appeal No.4711 of 2022 dtd 26.03.2024), (Mohamed Saif Pasha vs. Madiha Arif (2021 SCC OnLine Madras 16570), on the identical issue, held and observed that, the Family Courts are duty bound to accept the agreements of the parties and declare the dissolution of the marriage as agreed"The court was hearing the husband's appeal against a Family Court order rejecting his suit seeking decree of declaration regarding marital status– observing that it did not disclose a cause of action.The appellant and the respondent got married on 21.02.2015 at Ahmedabad as per the Shariyat law. Admittedly, due to differences, the parties got divorced as per Shariyat Law. Before execution of the divorce deed, the parties had also executed deed of understanding dated 11.03.2024, whereby they settled their issue regarding articles and belonging of respondent wife who had waived her right of maintenance. The son of the parties, as agreed, was to remain with the wife. To obtain a decree of declaration regarding marital status, the husband filed a suit under Section 7 Family Courts Act. The respondent wife had also admitted the suit by way of pursis before the Family Court. The Family Court raised the issue of maintainability of the suit and observed that the plaintiff has not disclosed the cause of action for filing the suit. The Family Judge while dismissing the suit under Order 7 Rule 11 CPC, held that the Family Court cannot be approached just to get affirmation in the form of declaratory decree with respect to Talaaq legally executed under Muslim Law and therefore, when a legal character has not been denied to the plaintiff, then plaintiff has no cause of action to file a suit for declaration. Against this, the husband moved the high court. The court noted that the parties had with consent decided to dissolve the marriage as per Mubaraat agreement. The respondent wife has accepted and admitted the Talaaq and Rs.25 Lakhs was received from the husband as permanent alimony. In the present case, the court said that the Mubara'at would be applicable, because, there was consent of both the parties. "The word 'Mubara'at' is a form of extra-judicial divorce based on mutual consent and same is valid as it remains untouched by the Dissolution of Muslim Marriage Act. Thus, the only prayer in the suit is to the effect that under explanation (b) of Section 7(1) of Family Courts Act, to declare that, the marriage solemnized is dissolved in terms of MOU dated 15.07.2024," the court noted. The court thus said that the findings of the Family Court that, the defendant should have denied the factum of divorce as required under Section 34 of The Specific Relief Act was incorrect. "It is the misconception on the part of the Family Court that under explanation (b) of Section 7(1) of The Family Courts Act, the parties cannot approach before the Family Court to get affirmation in the form of declaratory decree with regard to Talaaq executed under the Islamic Law. The explanation (b) of Section 7(1) of the Family Courts Act authorize the Family Court to pass any decree for a declaration as to the validity of the marriage or as to the matrimonial status of any person," the court held. The court said that the parties had not prayed to adjudicate, or called upon to dissolve the marriage by decree of divorce. The prayer was to only declare the marital status by endorsing the “Mubara'at” invoking jurisdiction under Section 7 Family Courts Act. Further the wife by way of pursis, had admitted the pleadings with respect to divorce, the court said."Thus, the requirement of denial of the opposite party as a condition precedent for cause of action under Section 34 of The Specific Relief Act, does not apply to matrimonial declaration sought under the special jurisdiction conferred under The Family Courts Act. Thus, in our opinion, the Family Court erred in dismissing the suit under Order 7 Rule 11 of the CPC," the court said. The appeal was allowed and the marriage was declared to be dissolved from the date of Mubaraat agreement.Case title: SHAHNAWAZ SIRAJUDDIN SIDDIQUI v/s MARUFA R/FIRST APPEAL NO. 768 of 2026Click Here To Read/Download...

Family Courts Are Duty Bound To Accept 'Mubarat' Divorce Of Muslim Couple: Gujarat High Court

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Family Courts Are Duty Bound To Accept 'Mubarat' Divorce Of Muslim Couple: Gujarat High Court

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