The Allahabad High Court has held that under Shariat, a marriage can be dissolved by mutual agreement between the husband and wife while disposing an appeal. This mutual dissolution may take the form of khula or mubara’at. Mubara’at, a form of mutual consent, is a valid and recognized method for dissolution of marriage.
The Division Bench of Justice Vivek Chaudhary and Justice Om Prakash Shukla passed this order while hearing an appeal filed by Arshad Husain.
The appeal under Section 19 of the Family Courts Act, 1984 has been filed by the husband/appellant, seeking to quash the order dated 04.07.2019 passed by the Principal Judge, Family Court, Lucknow, whereby Declaration Case filed by the husband/ appellant for declaration of matrimonial status of the parties has been dismissed at the admission stage.
The facts of the case are that the marriage between the appellant and the respondent was solemnized on 12.01.2002 in accordance with Islamic rites and rituals. It was the case of the appellant that after marriage, the behaviour of his wife was not good as his wife was having an affair with a police officer, on account of which his wife visited her parental house frequently.
With the connivance of the said police officer, his wife had lodged a frivolous complaint against him and her behaviour became cruel. Ultimately, on 02.07.2018, she went to parental home and since then, she has been living there only. Despite efforts made by him for reconciliation, settlement between them was not arrived at and ultimately he gave triple talaq to his wife in accordance with Muslim law.
In this background, the appellant had instituted the declaration case, seeking to declare the matrimonial status of the parties, before the Family Court, Lucknow.
The Family Court, Lucknow, heard the aforesaid declaration case at admission stage and has returned a finding that though the husband claimed to have given triple talaq in the month of March, April and May, but there was neither any endorsement to the fact that first, second and third talaq were given by the husband during the non-menstrual period of the wife nor there was any endorsement to the fact that any effort for reconciliation preceded talaq.
By recording these findings and placing reliance upon the judgment of the Apex Court rendered in Shayara Bano v Union of India: (2017) 9 SCC 1, the Family Court has dismissed the declaration case by order dated 04.07.2019 at the admission stage, which is assailed in the appeal.
During the hearing of the appeal, Counsels for the parties have drawn attention to the second supplementary affidavit, which is a Mubara’at (mutual agreement) dated 15.06.2024 entered into between the parties. This mutual agreement was also filed in the proceedings under Section 125 of the CrPC initiated by the respondent (wife). The agreement provides that both parties will withdraw all pending cases between them, and the marriage shall be dissolved by mutual consent, subject to the payment of Rs 30,00,000 (Rs 30 lakh) by the husband to the wife in three installments.
Counsel for the appellant submitted that both the parties are living separately and the husband has already paid the entire sum of Rs 30,00,000 in three installments and requests that the appeal be disposed of in terms of the mutual agreement, thereby dissolving the marriage between the parties by consent.
Mohd Mustafizul Haq, Counsel representing the respondent/ wife, does not dispute the aforesaid mutual agreement dated 15.06.2024 and states that Rs 30,00,000 has been paid to the wife by the husband/appellant in three installments and the respondent has no objection to declare the marriage of the parties dissolve in terms of the mutual agreement dated 15.06.2024.
“In the case, the facts are undisputed that the parties are living separately and have entered into a Mubara’at agreement dated 15.06.2024, wherein they mutually agreed to dissolve the marriage, subject to the payment of Rs 30,00,000 by the husband to the wife. It is also undisputed that the sum of Rs 30,00,000 has been paid in full by the husband, and both the appellant and respondent have consented to the dissolution of the marriage. In light of these facts, the Court finds that no useful purpose would be served by remitting the matter back to the Family Court for further proceedings,” the Court observed.
Accordingly, the Court disposed of the appeal in terms of the mutual agreement (mubara’at) dated 15.06.2024. The decree of divorce in terms of mutual agreement/consent dated 15.06.2024 is granted by declaring dissolution of the marriage between the parties. Let a decree be prepared accordingly.
“The order dated 04.07.2019 passed by the Principal Judge, Family Court, Lucknow, is hereby set aside. The matrimonial status of the parties is declared as “divorced” under Muslim Personal Law and in accordance with their mutual agreement dated 15.06.2024,” the Court ordered.
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