Recently, the Gujarat High Court held that Family Courts are fully empowered to entertain and declare dissolution of marriage based on Mutual Consent Divorce (Mubarat) under Muslim law, in an appeal arising from rejection of such declaration by a Family Court. The Court emphasised that jurisdiction to determine marital status cannot be defeated by procedural technicalities when parties have voluntarily dissolved their marriage.
Brief Facts:
The case arose from an appeal challenging the Family Court’s refusal to entertain a plea seeking a declaration of divorce under Section 7 of the Family Courts Act, 1984, read with Section 34 of the Specific Relief Act. The marriage between the parties was solemnised as per Muslim rites and registered shortly thereafter. However, due to incompatibility, the parties mutually agreed to dissolve the marriage and executed a Mubarat (mutual divorce deed) in the presence of witnesses, which was also recorded before a notary. Despite this, the Family Court dismissed the plea, citing procedural deficiencies, including questions over service of notice, absence of the wife, and doubts regarding representation through a power of attorney. Aggrieved, the husband approached the High Court. During appellate proceedings, the wife later appeared, filed an affidavit affirming her free consent to the divorce, and it also emerged that she had remarried, supported by documentary evidence, including a fresh passport and Nikah Nama.
Contentions of the Plaintiff:
The Plaintiff contended that the Family Court had erred in refusing to exercise jurisdiction despite clear evidence of a valid Mubarat executed voluntarily by both parties. The Counsel argued that under Muslim personal law, mutual consent divorce does not necessarily require elaborate procedural formalities, and the Court ought to have recognised the dissolution based on the agreement and surrounding circumstances. Reliance was placed on prior High Court rulings affirming that Family Courts can declare marital status even in cases of oral or informal mutual divorce.
Contentions of the Respondent:
While the Respondent initially remained absent before the Family Court and before the High Court, she supported the Plaintiff's case by filing an affidavit confirming that the divorce deed was executed voluntarily and without coercion. The parties jointly submitted that the marriage had already been dissolved and sought formal recognition of the same. The earlier objections raised by the Family Court regarding procedural irregularities were thus effectively neutralised.
Observation of the Court:
The Bench reaffirmed that the issue of dissolution of marriage through Mubarat is no longer res integra, holding that “the Family Courts are vested with the jurisdiction to declare the marital status of the parties, even in a case of mutual consent divorce in the form of Mubarat… even without a written agreement.”
Referring to the case Asif Daudbhai Karva and Anr. Vs. None, the Court elaborated on the nature of Mubarat under Muslim law, emphasising that mutual consent itself forms the core of such dissolution, and not procedural formalities or documentation. The Bench noted that classical texts and precedents recognise Mubarat as a valid mode of divorce rooted in mutual agreement, observing that “there is no process, by which, the written agreement is essential requirement for Mubarat.”
The Court further examined Section 7 of the Family Courts Act, 1984, and held that such jurisdiction squarely extends to recognising mutual divorce under personal law. It endorsed the broader judicial consensus, including views of the Karnataka High Court, that Family Courts are “competent and empowered” to grant declarations of divorce based on Mubarat.
The Bench found that the Family Court had erred in prioritising procedural objections, such as issues surrounding power of attorney, absence of the wife, and alleged defects in service, over substantive justice. It noted that the wife had subsequently appeared and unequivocally confirmed her consent, thereby rendering the core fact of dissolution “uncontroverted.”
The decision of the Court:
In light of the foregoing discussion, the Court allowed the appeal, quashed the Family Court’s order and declared that the marriage stood dissolved with effect from the date of execution of the Mubarat deed.
Case Title: X Vs. Y
Case No.: R/First Appeal No. 1900 of 2025
Coram: Hon’ble Mr. Justice A.Y. Kogje, Hon’ble Ms. Justice Nisha M. Thakore
Advocate for the Petitioner: Adv. ASHISH M DAGLI
Advocate for the Respondent: Adv. PARTH .B. CHAUHAN
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