The Rajasthan High Court has set aside a Family Court judgment that refused to recognize a divorce by mutual consent between a Muslim couple on the ground that the Talaq was not pronounced in the presence of two witnesses. The High Court held that under Sunni Muslim law, the presence of witnesses is not mandatory for a valid Talaq. The Court further declared that a ‘Mubarat’ agreement (divorce by mutual consent) is a valid ground for dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939.
The Division Bench, comprising Justice Arun Monga and Justice Yogendra Kumar Purohit, allowed the appeal filed by the wife, observing that the case was a classic example where “miya biwi raazi, nahi maan rahaa qazi” (husband and wife are willing, but the judge is not agreeing).
Background of the Case
The appellant-wife and respondent-husband, both Sunni Muslims, were married on February 27, 2022, in Merta City. No child was born from the wedlock. Following differences in temperament and ideology, the parties separated. During the subsistence of the marriage, the husband pronounced Talaq on three separate occasions—June 8, July 8, and August 8, 2024—each during a distinct Tuhr (period of purity between menstruations). The wife accepted these pronouncements.
Subsequently, on August 20, 2024, the parties executed a written divorce agreement by mutual consent (Mubarat) on a non-judicial stamp paper, affirming the dissolution. The wife then filed a suit before the Family Court, Merta, seeking a declaration under Section 2(viii)(a) of the Dissolution of Muslim Marriages Act, 1939. Despite the husband admitting to the Talaq and the execution of the mutual divorce agreement, the Family Court dismissed the suit on April 3, 2025. The Trial Court held that the wife failed to prove cruelty and that the Talaq was invalid because it was not pronounced in the presence of two adult male witnesses.
Arguments of the Parties
The counsel for the appellant-wife argued that the Family Court’s judgment was based on hyper-technical grounds and a misapplication of legal principles. It was contended that the parties are governed by Sunni Muslim law, under which a Talaq, whether oral or written, does not mandatorily require witnesses for its validity. The counsel submitted that the requirement for witnesses is specific to Shia law. Furthermore, the counsel argued that since both parties admitted to the pronouncement of Talaq and the execution of the Mubarat agreement, the rejection of the prayer was legally untenable.
The counsel for the respondent-husband supported the appeal, admitting the factum of marriage, the pronouncement of Talaq, and the mutual divorce agreement. He expressed no objection to the grant of the decree of divorce.
Court’s Analysis
The High Court examined the reasoning of the Family Court, which had relied on the judgments of the Bombay High Court in Banu Vs Koutubuddin Sulemanji Vimanwala and the Jammu & Kashmir High Court in Dilshada Massod Vs Ghulam Mustaffa to hold that Talaq without witnesses is invalid.
The Division Bench observed that the cited judgments pertained to cases where the parties were governed by the Shia School of Muslim law. The Court stated:
“It follows, therefore, that the judgments ibid are not applicable to the parties herein.”
The Court clarified that under Sunni law, the requirement of witnesses is not mandatory. Even otherwise, the purpose of witnesses is to ensure the pronouncement is voluntary. The Court noted:
“The appellant and the respondent both categorically pleaded and unambiguously stated before the Court that during the subsistence of the marriage, the defendant pronounced talaq upon the plaintiff… The plaintiff accepted the said pronouncements.”
Recognition of Mubarat: The Court emphasized that the Family Court failed to appreciate the Mubarat agreement. The Bench referred to Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939, which allows dissolution on any ground recognized by Muslim law. Citing the Supreme Court in Zohara Khatoon Vs. Mohd. Ibrahim and Shabnam Parveen Ahmad and Mohammed Saliya Shaikh, the Court reaffirmed that Mubarat is a valid form of extra-judicial divorce where both parties mutually agree to dissolve the marriage.
The Court held that the Family Court committed a “material irregularity” by not exercising its jurisdiction under Section 7 of the Family Courts Act, 1984, to declare the matrimonial status of the parties based on the Mubarat agreement.
Decision and Guidelines
The High Court allowed the appeal, set aside the judgment dated April 3, 2025, and passed a decree declaring that the marriage between the parties stands dissolved.
Noting that Family Courts in Rajasthan were routinely rejecting similar petitions, the High Court issued the following guidelines to be followed by Family Courts in the state:
- Personal Presence: If a petition pleads that the marriage has been dissolved under Muslim Law through extra-judicial divorce, the Family Court must seek the personal presence of the parties to record their statements and satisfy itself that the dissolution is without coercion or duress.
- Production of Documents: If the divorce is reduced in writing (e.g., Mubaraat nama, Talaq Nama, or Khula Nama), the document must be produced before the Court for verification.
- Exercise of Jurisdiction: Upon satisfaction, the Court shall exercise its jurisdiction under Section 7 of the Family Courts Act, 1984, to pass an appropriate order or decree declaring the status of the marriage.
Case Details
Case Title: Ayasha Chouhan vs Waseem Khan
Case No.: D.B. Civil Misc. Appeal No. 1319/2025
Coram: Justice Arun Monga and Justice Yogendra Kumar Purohit
