Delhi High Court Issues Directions To Family Courts For Dissolution Of Muslim Marriage On Basis Of Talaq Nama, Mubarat Agreement, Etc.

Relevant Paras

12. In the present case, we find that both parties had filed a joint petition before the leaned Family Court seeking a declaration that their marriage stood dissolved through Mubaraat on 24.01.2020 as per the Muslim Personal Law (Shariat) Application Act, 1937. In support of their plea, the parties have relied on the Mubaraat agreement dated 24.01.2020 wherein it had been specifically recorded that the marriage between the parties stood dissolved by the mode of Mubaraat which is one of the accepted modes of divorce under the Muslim Personal Law. The fact that Mubaraat, wherein the marriage is dissolved with the consent of the parties is a recognised mode of dissolution of marriage under the Muslim Personal Law (Shariat) Application Act, 1937, was duly noted by the Apex Court in paragraph nos.3 & 4 of its majority decision in Shayara Bano (supra). The said paragraphs
read as under:-
“3. The Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as “the 1937 Act”) was enacted to put an end to the unholy, oppressive and discriminatory customs and usages in the Muslim
community. [ “Statement of Objects and ReasonsFor
several years past it has been the cherished desire of the Muslims of British India that customary law should in no case take the place of Muslim Personal Law. The matter has been repeatedly agitated in the press as well as on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest Moslem religious body has supported the demand and invited the attention of all concerned to the urgent necessity of introducing a measure to this effect. Customary law is a misnomer inasmuch as it has not any sound basis to stand upon and is very much liable to frequent changes and cannot be expected to attain at any time in the future that certainty and definiteness which must be the characteristic of all laws. The status of Muslim women under the so-called customary law is simply disgraceful. All the Muslim Women
Organisations have therefore condemned the customary law as it adversely affects their rights. They demand that the Muslim Personal Law (Shariat) should be made applicable to them. The introduction of Muslim Personal Law will automatically raise them to the position to which they are naturally entitled. In addition to this present measure, if enacted, would have very salutary effect on society because
it would ensure certainty and definiteness in the mutual rights and obligations of the public. Muslim Personal Law (Shariat) exists in the form of a veritable code and is too well known to admit of any doubt or to entail any great labour in the shape of research, which is the chief feature of customary law.”(emphasis supplied)] Section 2 is most relevant in the face of the present controversy:

“2. Application of Personal Law to Muslims.—
Notwithstanding any customs or usage to the
contrary, in all questions (save questions relating to
agricultural land) regarding intestate succession,
special property of females, including personal
property inherited or obtained under contract or gift
or any other provision of Personal Law, marriage,
dissolution of marriage, including talaq, ila, zihar,
lian, khula and mubaraat, maintenance, dower,
guardianship, gifts, trusts and trust properties, and
wakfs (other than charities and charitable
institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be Muslim Personal Law (Shariat).”

4. After the 1937 Act, in respect of the enumerated subjects under Section 2 regarding “marriage, dissolution of marriage, including talaq”, the law that is applicable to Muslims shall be only their Personal Law, namely, Shariat. Nothing more, nothing less. It is not a legislation regulating talaq. In contradistinction, the Dissolution of Muslim
Marriages Act, 1939 provides for the grounds for
dissolution of marriage. So is the case with the Hindu
Marriage Act, 1955. The 1937 Act simply makes Shariat applicable as the rule of decision in the matters enumerated in Section 2. Therefore, while talaq is governed by Shariat, the specific grounds and procedure for talaq have not been codified in the 1937 Act.”

13. In the light of the aforesaid, what emerges is that the parties are correct in urging that the dissolution of marriage by way of Mubaraat under the Muslim Personal Law is duly recognised as one of the modes of extra- judicial divorce. It is also evident that after the marriage between the parties is dissolved by way of Mubaraat, it is open for them to enter into an
agreement referred to as the ‘Mubaraat Agreement’ to record the factum of dissolution of their marriage through the mode of Mubaraat. However, this
agreement is only a private agreement between the parties and therefore, in case, the parties desire the factum of the dissolution of their marriage to be
recorded in a public document, it is always open to them to seek a declaration regarding the status of their marriage under Section 7(b) of the
Family Courts Act.

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