Karnataka High Court

Shri Asif Iqbal S/O Aziz Ahmed ... vs Smt. Rafiash @ Feenaz W/O Asif ... on 15 March, 2022

Bench: S.Sunil Dutt Yadav, K.S.Hemalekha

                                          1



             IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH
          DATED THIS THE 15TH DAY OF MARCH, 2022
                                  PRESENT
        THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
                                      AND
          THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
                         MFA NO.101928 OF 2021
BETWEEN:

1.    SHRI. ASIF IQBAL S/O. AZIZ AHMED CHOPDAR,
      AGE:34 YEARS, OCC: PRIVATE WORK,
      R/O. AVALAKKI ONI MADIHAL,
      DHARWAD, DIST: DHARWAD.
                                           ....APPELLANT
(BY SMT.SUMANGALA A. CHAKALABBI, ADVOCATE)
AND:
1.    SMT. RAFIAH @ FEENAZ W/O. ASIF IQBAL CHOPDAR,
      AGE: 30 YEARS, OCC: SOFTWARE ENGINEER,
      WORKING IN CSI INTERFUSION INDIA COMPANY BANGALURU,
      R/O. C/O. SAYED MEEHABOOB NABI,
      H. NO.41 AZAD PARK, CHETAN COLONY,
      HUBBALLI-580 021.
                                         ....RESPONDENT

(BY SRI.A. A. SAVANUR, ADVOCATE)

THIS MFA IS FILED UNDER SECTION 19(1) OF THE FAMILY COURT ACT, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 28.09.2021 PASSED IN O.S. NO.11/2021 BY THE HON'BLE PRINCIPAL JUDGE FAMILY COURT DHARWAD AT DHARWAD, BY ALLOWING THE COMPROMISE PETITION FILED BY THE BOTH PARTIE UNDER XXIII RULE 3 OF CPC, AND CONSEQUENTLY ALLOW THE ABOVE APPEAL WITH COST, OR ALTERNATIVELY REMAND THE SUIT O.S. NO.11/2021 TO THE HONBLE PRINCIPAL JUDGE FAMILY COURT DHARWAD AT DHARWAD IN THE INTEREST OF JUSTICE AND EQUITY.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, K.S. HEMALEKHA J., DELIVERED THE FOLLOWING:

ORDER ON MUBARAT

The present appeal is directed against the order dated

28.09.2021, whereby the Family Court, Dharwad dismissed the

suit as not maintainable and the prayer to record compromise or

settlement was rejected. Aggrieved by the order of rejection, the

present appeal is preferred. Now, with consent of the parties,

compromise petition under Order XXIII Rule 1 of CPC along with

the agreement of mutual consent by way of 'MUBARAT' for

dissolution of marriage has been filed.

2. The parties herein have filed a joint compromise

petition which reads as under;

1. That, the appellant and respondent have settled their matrimonial dispute in the presence of the Hon'ble Mediator appointed by this Hon'ble court and they have mutually agreed for the dissolution of their marriage by mutual consent by an agreement of Mubaraat. They have also executed an Agreement to that effect and signed the said agreement in the presence of the witnesses, who have also put their signatures on the agreement. By virtue of the same, both the appellant and respondent have settled all their issues and the settlement is reduced into writing

in the said agreement. The said agreement may be read as part and parcel of this joint compromise petition.

2. The appellant and respondent have entered into this settlement out of their free will and consent and dissolved their marriage by putting their signature on the said Agreement and hence they declare and acknowledge that the marriage solemnized between them on 03.11.2019 at Railway Officers Club, Hubballi is dissolved forthwith by way of Mubaraat, resulting into Talak-e-bain provided in Shariat and referred at Chapter 13 Syn 18 on page No.393 of Mohammedan Law 2021 Edition. The other terms and conditions are mentioned in the said agreement and they acknowledge the same and have signed the list appended with the said agreement.

3. The compromise petition entered is in view of the

agreement made between the parties for dissolution of marriage

by mutual consent by an agreement of 'MUBARAT' (Chapter 13

Syn 17 page No.393 of Mohammedan Law, 2021 Edition) which

reads as under;

17. Mubaraat (Mutual Release)- (i) Meaning- Mubaraat is also a form of dissolution of marriage contract. It is

signifies a mutual discharge form the marriage claims. In Mubaraat, the aversion is mutual and both the sides desire separation. Thus it involves an element of mutual consent.

In this mode of divorce, the offer may be either from the side of wife or from the side of husband. When an offer for mubaraat is accepted, it becomes an irrevocable divorce (talaq-ul-bain) and iddat is necessary:

Where husband ( Khana-Damad) and wife entered into an agreement that on breach of any conditions in the Kabin-nama wife would be entitled to divorce, the agreement was held opposed to the public policy. Because Kahana-Demad is not to work as a servant in the house of his in-laws. The breach of this condition can not be said to operate as a divorce and would not operate as a dissolution of marriage between the couple.

Mubara'at means mutual release. A Mubara'at divorce like Khula, is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife, and she desires a separation, the transaction is called Khula. When the aversion is mutual,, and both the sides desire a separation, the transaction is called Mubara'at. The offer in a Mubara'at divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is complete, and it operates as a Talak-i- bain as in the case of Khula. As a talak, so in Khula and Mubara'at, the wife is bound to observe the iddat.

(i) A Mohammedan marriage may be dissolved by a mutual agreement made by the husband and the wife ( of

sound mind and have attained puberty) mutually desiring to be separate. Such dissolution of marriage is called, ' Mubaraat' of 'Mubaraa'.

(ii) Mutual agreement must be made at the same meeting in express words. Under Shia Law Mubaraat must be expressed in Arabic language in the presence of two witnesses.

(iii) Mubaraat is an irrevocable divorce.

ii) Capacity for Mubaraat.- Both the husband and the wife must:

     (a)     be of sound mind ; and
     (b)     have attained puberty.
     (iv)    Formalities for Mubaraat. - No particular form is

required under Sunni Law. But mutual agreement must be made at the same meeting and the word 'Mubaraat'. Must be clearly expressed in the proposal and if ambiguous expressions are used intention must be proved.

But under the Shia Law, proper form is reqired. Mubaraat must be expressed in Arabic language and the expression ' Mubaraat' must be clearly expressed. Mutual agreement must be made at the same meeting in presence of two witnesses under the Shia Law. If the husband were to say to his wife, "I have discharged you for the obligation of marriage for such a sum and you are separate from me, " marriage would be dissolved.

4. All the Muslims in India are governed by The Muslim

Personal Law (Shariat) Application Act, 1937 ('Shariat Act' for

short). A Muslim marriage in India is a civil contract between a

man and a woman. Dissolution of marriage can be done at the

instance of the husband (Talaq), wife (Khula) or mutually

(MUBARAT).

5. There are two forms of divorce by mutual consent.

One is 'Khula' divorce and another one is 'MUBARAT' form of

divorce. In 'MUBARAT', the feature is that both the parties desire

for divorce and the proposal may emanate from either side. In

'MUBARAT', both the husband and wife are happy to get rid off

each other.

6. 'Mubarat' has been dealt with in chapter XVI of Mulla

Principles of Mahomedan Law 19 Edition, Reprint 2012 Section

319 and 320 at page No.265 and 266 describes as under;

319. Khula and Mubara'at- (1) A marriage my be dissolved not only by talak, which is the arbitrary act of the husband, but also by agreement between the husband and wife. A dissolution of marriage by agreement may take the form of khula or mubara'at.

(2) "A divorce by Khoola is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case the terms of the bargain are matters of arrangement between the

husband and wife, and the wife may as the consideration, release her dyn-mahr (dower) and other rights, or make any other agreement for the benefit of the husband' (r). Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce (s), though the husband may sue the wife for it.

A khula divorce is effected by an offer from the wife to compensate the husband if he releases her from her marital rights, and acceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable divorce (talak-I -bain) (ss.311 (3), 312), and its operation is not postponed until execution of the khulanama (deed of khula) (t).

(3) A mubara'at divorce like khula, is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife, and she desires a separation, the transaction is called khula. When the aversion is mutual, and both the sides desire a separation, the transaction is called mubara'at. The offer in a mubara'at at divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is complete, and it operates as a talak-i-bain as in the case of khula.

(4) As a talak, so in khula and mubara'at, the wife is bound to observe the iddat, as stated in Section 257 above (u).

320. Effect of khula and mubara'at divorce- Unless it is otherwise provided by the contract, a divorce effected by khula or mubara'at at operates as a release by the wife of

her dower, but it does not affect the liability of the husband to maintain her during her iddat, or to maintain his children by her.

7. The literal meaning of the word 'MUBARAT' is

'obtaining release from each other'. It is said to have taken place

when the husband and wife with mutual consent and desire

obtain release and freedom from their married status. The offer

of separation in 'MUBARAT' may proceed either from the wife or

from the husband and as soon as it is accepted, dissolution is

completed.

8. The Division Bench of the Kerala High Court in the

case of X-Appellant V/s. Y- Respondent in MAT Appeal

No.89 of 2020, 72 of 2021 reported in 2021 (2) MMLJ 269

(Ker) KERALA held in extensor, the dissolution of marriage by

way of 'MUBARAT' at para No.27 to 29 and partition of 81 which

reads as under;

27. Mubaraat: Mubaraat is a form of separation by mutual consent Dr. Justice Kauser Edappagath (Divorce and Gender Equity in Muslim Personal Law of India) after referring to many authorities refers to 'mubaraat' as dissolution of marriage by common consent of the spouses. The learned author further states thus:

The word mubaraat indicates freeing of each other (from the marriage tie) by mutual agreement. No formal form is insisted upon for mubaraat by the Sunnis. The offer may come from either side. When both the parties enter into mubaraat, all mutual rights and obligations come to an end. Both Shia and Sunni laws hold it an irrevocable divorce. Iddat is compulsory after mubaraat as after Khula. Under Sunni law, when both the parties enter into mubaraat, all matrimonial rights which they possess against each other fall to the ground.

28. Dr. Mufti Samiya Tabasum (Status of Muslim Women in India - Law relating to Marriage, Divorce and Maintenance ) states that Mubaraat is a dissolution of marriage contract by mutual consent.

29. Chapter IV verses 128 to 130 Qiuaran apparently refers to dissolution of marriage by mutual consent when an attempt to resolve the differences through conciliation fails. It is appropriate to refer verses 128 to 130 which read thus:

128. If a woman feareth ill-treatment from her husband, or desertion, it is no sin for them twain if they made terms of peace between themselves. Peace is better. But greed hath been made present in the minds ( of men). If ye do good and keep from evil, lo! Allah is ever informed of what ye do.

129. Ye will not be able to deal equally between (your) wives, however much ye wish ( todo so). But turn not altogether away (from one), leaving her as in suspense. If ye do good and keep from evil, lo! Allah is ever Forgiving, Merciful.

130. But if they separate, Allah will compensate each out of his abundance. Allah is ever All-Embracing, All- Knowing.

Portion of 81: Once a declaration of joint divorce invoking mubaraat is produced before the Family Court, the Family Court has to pass a decree declaring the matrimonial status of the parties. The inquiry in such cases is limited to the extent to find out whether both parties have agreed upon to dissolve such marriage invoking mubaraat. Once the Family Court is satisfied that mubaraat is executed by both the parties, it shall declare the matrimonial status of such parties. We are therefore, of the considered view that the Family Court is bound to entertain a petition for declaration of the status based on mubaraat. The Family Court shall dispose such matter, if both the parties have filed petition, after making a formal inquiry without any further delay treating it as an uncontested matter in the light of the guidelines issued by us in the judgment in O.P. (FC). No.352/2020 and connected cases dated 23.03.2021. The original petitions are disposed of as above.

9. The proceedings herein being the continuation and

exercising powers being the appellate Court, we are of the

considered view that the marriage in view of the joint

compromise petition filed invoking 'MUBARAT' before this Court

seeking for dissolution of marriage is accepted.

10. Needless to state that the parties will strictly adhere

to the terms of 'MUBARAT' to ensure that other pending legal

proceedings including proceedings under Section 498A of IPC are

closed in the light of the settlement arrived herein.

11. We duly appreciate the efforts put forth by the

mediator appointed by this Court Smt. Aruna Deshpande and the

said appreciation is placed on record.