No Limitation U/S 7 Of Family Courts Act, 1984, For Filing Suit For Declaration Of Divorce: Allahabad High Court

The Allahabad High Court has held that there is no limitation under Section 7 of the Family Courts Act, 1984 for filing suit for declaration of divorce.

Section 7 of the Family Courts Act, 1984 provides the jurisdiction of the Family Courts. Explanation (b) provides that a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person can be filed before the Family Court.

The bench comprising of Justice Vivek Kumar Birla and Justice Syed Qamar Hasan Rizvi held

“it is abundantly clear that no period of limitation is prescribed for a Suit or proceeding for declaration of matrimonial status of the parties as provided under the Explanation appended to Section 7 of the Family Courts Act, 1984.”

The Court held that the Family Court is empowered under Explanation (b) of Section 7 of the Family Courts Act to endorse any extra-judicial divorce. Accordingly, the Family Court has been held to have the jurisdiction to endorse mubara'at which is divorce by mutual consent under the Muslim Personal Law.

“in the case of mubara'at, the Family Court is competent to declare 'divorce', on being satisfied that both the parties, so agreeing to dissolve their marital-tie by mutual consent are major and sane are acting by their own free will. The declaration of the matrimonial status of the parties by the Family Court as contemplated under Section 7 of the Family Courts Act, 1984, is a judicial endorsement of even the extra-judicial divorce.”

Factual Background

Parties were married in 1984 in accordance with the recognised rites and customs of the Hanafi Muslim school of thought. A child was born to them in 1991. Thereafter, due to certain disputes, appellant filed suit for maintenance under Section 125 CrPC and also filed criminal case under Sections 498A, 323, 504, 506 IPC. However, due to out of Court settlement, the aforesaid litigation ended.

Parties have been admittedly living separately since 1990. In 1999, parties ended the marital ties by divorce by mutual consent by way of mubara'at. the dissolution was marriage was reduced in writing in 2000 and notarized as “Talaqnama Tehreer”. Thereafter, in 2021, parties filed a joint suit for declaration of divorce before the Family Court which was dismissed on grounds of non-filing of original “Talaqnama Tehreer” and the delay of 20 years in filing the suit after signing the document.

Appellant wife approached the High Court against the order of the Additional Principal Judge, Family Court, Jhansi and sought a declaration of divorce by way of mubara'at, as recognised under the Muslim Personal Law.

High Court Verdict

The Court observed that mubara'at is recognized as out-of-court divorce under the Muslim Personal Law where two consenting adults decide of end their marital ties. It was observed that either party to the marriage can initiate the divorce and the parties acting on their free will may consent to the conditional or unconditional divorce, so long as the conditions, if any, do not affect the rights of any party.

Reliance was placed on Shayara Bano v Union of India, where the Apex Court elaborated on the rights of Muslim women seeking divorce. The Court noted Section 2 (ix) of The Dissolution of Muslim Marriages Act, 1939 (Act VIII of 1939) which provides that “a woman married under the Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on the ground which is recognised as valid for the dissolution of marriages under Muslim Law.”

Upholding Family Court's competence in endorsing mubara'at, the Court held that if the Family Court is prima facie satisfied that the parties have entered into an agreement to severe marital ties of their own free will, then the Family Court must endorse the divorce and declare parties as divorced. It was held that the parties are at liberty to challenge the endorsement in accordance with law.

The Court relied on Section 58 of the Evidence Act which provides that facts which have been admitted by the parties or their agents in writing or in pleadings need not be proved. It was observed that the parties had willingly consented to divorce and two witnesses had admitted to the dissolution of the marriage and execution of “Talaqnama Tehreer”. In face of such findings, the Court held that the Family Court erred in dismissing the declaration suit for want of original copy of the “Talaqnama Tehreer”.

The Court held that there is no limitation prescribed under Section 7 of the Family Courts Act, 1984 for filing suit for declaration of divorce. It was held that the findings on suit being instituted with a delay of 20 years was unsustainable as the parties had been living separately since 1990 and had willingly divorce by way of mubara'at as per the Muslim Personal Law.

“The Explanation appended to the Section 7 of The Family Courts Act, 1984 bestows jurisdiction upon the concerned Family Court to entertain the suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of person concerned. The Family court Act, 1984 does not prescribe any period of Limitation in respect of the suit or proceeding for declaration of the matrimonial status of the parties.”

The Court further observed that Section 29(3) of the Limitations Act excluded its applicability on suits relating to marriage and divorce laws.

“The claim for the declaration of the parties' marital-status, strikes at the very core of society and if such an undisputed declaratory claim is elongated and haunted by the technical ground of delay, the aim, object and the very spirit of the said welfare legislation shall be adversely sacrificed.”

It was observed that suit for declaration is not adversarial in nature and substantial justice will prevail over technical considerations.

Though the declaration suit filed by the parties had “transgressed the boundaries of reasonable time”, the Court observed that there was a recurring cause of action as the parties mutually ended their marriage by mubara'at.

Accordingly, the Court set aside the order of the Family Court and granted a declaration fo divorce to the parties.

Case Title: Smt Hasina Bano v. Mohammad Ehsan [FIRST APPEAL No. - 495 of 2024]

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