New Delhi: When a Muslim couple decided to go their separate ways and applied for divorce by mutual consent, the Rajasthan High Court didn’t stand in their way.
It just invoked a variation of an age-old adage, “Miya biwi raazi, nahi maan rahaa qazi” – and signed off on their divorce while overturning a family court’s order rejecting the divorce plea.
A bench of Justices Arun Monga and Yogendra Kumar Purohit noted on 7 January that although both parties had agreed to dissolve their marriage before a trial court, the lower court had rejected their plea last April.
Noting a pattern of family courts in Rajasthan routinely rejecting pleas for dissolution of marriage under Muslim law, the court set aside the family court’s order rejecting the wife’s plea for divorce because two adult male witnesses were not present when the ‘talaq’ was pronounced.
The high court granted a divorce to the Muslim couple who had mutually agreed to end their marriage in August last year. It held that the appellant was entitled to a decree declaring that her marriage stood dissolved based on a ‘Mubarat’ agreement, a form of divorce by mutual consent recognised under Muslim Personal law.
The case
The case dates back to February 2022, when the Muslim man and woman got married according to religious ceremonies.
Although they had no children, serious temperamental and ideological differences developed between them, and the wife went to the Family Court at Merta in Rajasthan.
According to her plea, the husband’s conduct had caused her a lot of mental distress, making it impossible for them to be together.
The husband pronounced the ‘talaq’ on three occasions in June, July and August 2024 over the course of three menstrual cycles, or three ‘tuhar’ periods. On 8 August 2024, the marriage was finally dissolved, and a divorce agreement was executed between them.
However, when the wife went to the family court seeking a divorce decree on grounds of cruelty from her husband, her plea was rejected, despite the husband having no objections to the divorce but only to the allegations of cruelty and harassment.
She approached the Rajasthan High Court after the family court on 3 April last year rejected her suit for dissolving her marriage under Section 2 of the Dissolution of Muslim Marriages Act, 1939.
Section 2 of the 1939 Act allows Muslim women to seek divorce on grounds including the husband’s whereabouts being unknown for at least four years, his failure to provide maintenance for two years, or the husband being in prison for seven years or more.
Besides this, a Muslim woman is also entitled to divorce if the husband fails to perform, without reasonable cause, his marital obligations.
Divorce is also allowed if the husband was impotent at the time of marriage, is insane, or suffers from a venereal disease.
A wife is also entitled to divorce if she was married by her father or guardian before the age of 15 and repudiates her marriage before attaining majority.
The family court order
Underlining that public interest must prevail over private consent, the family court had rejected the wife’s plea, saying that just because the parties had consented to divorce each other did not mean that it would “sanctify an illegality”.
It added that the legal position was undoubtedly unambiguous, but even when the parties are consenting, the court was duty-bound to look at questions of legality.
Finally, the family court dismissed the wife’s plea, prompting her to approach the Rajasthan High Court.
What the court ruled
The Rajasthan High Court noted that the family court had erroneously rejected the wife’s plea, claiming that there were no specific instances to prove the husband’s cruelty, and that the wife’s testimony was not enough to grant a divorce on the grounds of cruelty. The wife’s lawyer argued that this was a “hyper-technical approach”.
The family court had also said that the presence of two witnesses was required for a valid pronouncement of ‘talaq’, but the Rajasthan High Court pointed out that this requirement was only for Muslim couples who belonged to the Shia sect, but the petitioners belonged to the Sunni sect.
The court also pointed out that precedents the family court relied on, such as the 1994 Banu vs KS Vimanwala ruling that in the absence of two witnesses, the ‘talaq’ will not be valid, also applied to Shia couples.
The court also noted that the purpose of having such witnesses is to ensure that a person is in a fit state of mind and both parties have voluntarily consented to the divorce.
“We are of the view that the learned Family Court erred in holding that the appellant had failed to prove that the defendant had duly divorced her,” the court said in its 7 January ruling.
It also noted that Section 7 of the Family Courts Act vests the Family Court with jurisdiction to entertain and decide suits and proceedings arising out of matrimonial relationships.
“The family court committed a material irregularity in not going into that aspect of the matter,” the high court said.
What the court meant by Mubarat
The court also noted that the matter before the family court was not a mere consensual arrangement between the parties, but a properly instituted suit seeking a judicial declaration of their matrimonial status, founded upon a Mubarat agreement between them. However, the court acted as if the Mubarat agreement fell outside its adjudicatory domain.
The high court said the Mubarat form of divorce is a valid agreement mutually executed between the parties, affirming the dissolution of marriage.
It added that according to this agreement, the wife had received the full amount of mehr, and maintenance for the iddat or mandatory waiting period, along with an amount towards her lifelong maintenance from the husband.
“Under Muslim law, the conditions for a valid khula or Mubaarat divorce primarily involve mutual consent, free will, and the existence of a clear agreement or declaration, with the process often requiring the involvement of a Qazi or a court to endorse and declare the divorce. Both forms are recognized modes of dissolution,” the court noted while setting aside the family court ruling.
(Edited by Sugita Katyal)
Also Read: Under lens in I-PAC case, businessman moves SC to stop ED from accessing data on his seized phone