[Muslim Law] Court Obligated To Endorse Divorce By Muba'arat After Ascertaining Mutuality & Voluntariness Of Agreement: Allahabad HC

“When parties approach a court seeking formal recognition of their divorce through mubara'at, the court's primary role is to verify the mutuality and voluntariness of the agreement. Upon satisfaction, the court is obligated to endorse the dissolution and declare the martial status of the parties as divorced”, held the Court

Under Shariyat Law, parties can file for declaration for divorce through a mutual agreement called Mubaarat.

Case Background

Parties were married in 2002 as per Islamic rites and rituals. The husband submitted that after their marriage, his wife started having an affair with a police officer. It was further submitted that in connivance with the said police officer, she had filed frivolous complaints against her husband and that since 02.07.2018, she has been living with her parents, and not in their marital home.

Consequently, appellant-husband gave his wife a divorce by means of triple talaq. He also instituted a declaration case before the Family Court in Lucknow, in order to declare the matrimonial status of the parties. However, the Family Court found that there was insufficient evidence to hold that the appellant had divorced his wife as per the required procedure.

Aggrieved, he filed the present appeal.

During the hearing the parties placed the Mubaarat entered into by them, before the Court. It stated that both husband and wife would withdraw all pending cases against each other and that the marriage would be dissolved by mutual consent, subject to a payment of Rs. 30 lakhs by the husband to the wife in three instalments.

Counsel for the appellant contended that the aforementioned payment had been made and that the parties had been residing separately and thus, they were entitled to a divorce basis the agreement.

High Court Verdict

The Court observed that under Shariyat Law, marriage can be dissolved by mutual consent and without judicial intervention, by submitting a Khula or Mubaarat. It stated that the process begins with one of the parties proposing a dissolution to which the other agrees. Subsequently, once both parties affirm their decision to terminate the union, the divorce takes place.

The Court held that in a case where a Mubaarat had been filed by mutual agreement, the Family Court was to ascertain whether the agreement was valid. Once such validity had been determined, the Court was to pass the order granting divorce to the parties without any further investigations. It was held that such proceedings would be summary in nature, treating the matter as uncontested.

“On prima facie satisfaction that there was valid pronouncement of tala1, khula, talaq-e-tafweez, as the case may be, or valid execution of mubaarat agreement, the Family Court shall proceed to pass order endorsing the extrajudicial divorce and declaring the status of the parties with-out any further enquiry”, held the Kerala High Court in Asbi K.N.

In the present case, the Court observed that the parties who had been residing separately, had entered into a Mubaarat agreement dated 15.06.2024. It was further observed that pursuant to same, the husband made a payment of Rs. 30 Lakhs to the wife as per the agreement. The Court held that in such a situation, there was no need to remit the matter back to the Family Court. Accordingly, the Court granted them the decree of divorce.

Case Title: Arshad Hussain v. Shahneela Nishat [FI