Important provisions of Dissolution of Muslim Marriages Act, 1939

 2. Grounds for decree for dissolution of marriage.—A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from 2[* * *] a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,—

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical illtreatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;

(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law:

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Whether family court can permit dissolution of Muslim marriage by mutual consent?

As already mentioned supra, the Hon'ble Division Bench of High Court of Kerala at Ernakulam, had categorically held that 'mubaraat' is a form of an extra-judicial divorce based on mutual consent under Islamic law and same is valid, as it remains untouched by the Dissolution of Muslim Marriages Act. The court below, in such circumstances, is neither called upon to adjudicate nor called upon to dissolve the marriage by decree of divorce. On the other hand, the Family Court only has to declare the marital status by endorsing the mubaraat invoking jurisdiction under Explanation (b) of Section 7(1) of the Family Courts Act. Once a declaration of joint divorce invoking bubaraat 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. Hence, this Court is of the considered view that the Family Court is bound to entertain a petition for declaration of the status based on mubaraat. In view of the above, the order passed by the learned Principal District Munsif, Alandur in O.S. Sr. No. 744/2020 dated 28.09.2020 is set aside and the parties are at liberty to approach the concerned Family Court with appropriate jurisdiction. Thereafter, the concerned Family Court shall dispose of the matter, if both the parties have filed petition and after making a formal inquiry without any further delay treating it as an uncontested matter in the light of the guidelines issued by the Hon'ble Division Bench, High Court of Kerala, Ernakulam in the judgment in O.P.(FC) No. 352/2020 and connected cases dated 23/3/2021 and the present Civil Revision Petition is allowed. No costs.

5. We have carefully gone through the allegations made in the complaint and also police papers. It appears that the parties have decided to get separated by mutual consent and accordingly approached the Family Court by filing a petition No. F. No. 28 of 2022 under section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with section 7 (1)(b) of the Family Courts Act for declaration of status. It appears that the parties have arrived at amicable settlement voluntarily.

7. In the instant case, in terms of provisions of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, all the questions about the property, marriage, dissolution of marriage including talaq, illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties and wakfs the rule of decision in cases where the parties are Muslims shall be considered as per the provisions of Muslim Personal Law (Shariat). It further appears from the bare reading of section 7 of Family Courts Act, 1984, which prescribes jurisdiction, in terms of section 7(1), Explanation (a) and (b), suit for a declaration as to the validity of a marriage or as to the matrimonial status of any person can also be a subject matter before the Family Court. 

8. It thus appears that the learned Judge of the Family Court has rightly applied the provisions of Muslim Personal Law (Shariat) Application Act, 1937 to the parties before us and accordingly declared the status of marriage as no more in existence by mutual consent.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 166 of 2022

Decided On: 29.03.2022

 Shaikh Taslim Shaikh Hakim  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.K. Jadhav and Sandip Kumar Chandrabhan More, JJ.

Citation: MANU/MH/1389/2022

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