The Gujarat High Court has ruled that a written agreement is not an essential requirement for dissolving a Muslim marriage by mutual consent through the process of Mubaraat, and that a family suit seeking declaration of such dissolution is maintainable under Section 7 of the Family Courts Act, 1984.
A Division Bench of Justice A.Y. Kogje and Justice N.S. Sanjay Gowda set aside an order of the Family Court, Rajkot, which had dismissed a joint suit filed by a husband and wife as not maintainable. The couple had sought a declaration that their marriage, solemnised on March 15, 2021, was dissolved through Mubaraat under the Muslim Personal Law (Shariat) Application Act, 1937.
Background
The appellants, married as per Islamic Shariyat and caste customs in Madhubani, Bihar, lived together in Rajkot and had three children. Due to irreconcilable differences, they began living separately for over a year and mutually agreed to end the marriage in the interest of their future. Efforts at reconciliation by family elders failed.
They approached the Family Court for a declaration that their marriage stood dissolved by Mubaraat. The Family Court dismissed the suit, holding that such dissolution required a written agreement and that the petition was not maintainable in its present form.
Arguments
Counsel for the appellants argued that Section 7 of the Family Courts Act empowers the Family Court to declare the status of a marriage, and that Mubaraat under Shariat does not mandate a written agreement. The requirement of written form, they contended, was erroneously imposed.
The Assistant Government Pleader (AGP) supported the Family Court’s view, submitting that the relief sought was essentially for dissolution, which falls within the domain of personal law, and that proper formalities needed to be followed.
Court’s Analysis
The Bench examined Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which recognises dissolution of marriage by Mubaraat. Citing authoritative texts including Dr. Paras Diwan’s Family Law and Aqil Ahmed’s Mohammedan Law, as well as the Supreme Court decision in Zohara Khatoon v. Mohd Ibrahim (1981) 2 SCC 509, the Court noted that:
“There is nothing to suggest that there has to be a written agreement of Mubaraat, nor is there a prevailing practice requiring maintenance of a register for such agreements.”
The Court held that the mutual consent to dissolve the marriage is sufficient for Mubaraat, and that a written agreement is not a sine qua non.
The judgment also drew upon precedents from the Karnataka High Court (Shabnam Parveen Ahmad v. Mohammed Saliya Shaikh, 2024) and Delhi High Court (MAT.APP.(F.C.) 37/2023, decided 07.11.2024), which affirmed that Family Courts can declare dissolution by Mubaraat under Section 7 of the Family Courts Act.
Decision
Holding that the Family Court erred in dismissing the suit, the High Court ruled that the case raised a triable issue requiring evidence and that the Family Court had jurisdiction.
The impugned order dated April 19, 2025, was set aside, and the matter remanded to the Family Court, Rajkot, with directions to treat the suit as maintainable and decide it on merits. The Family Court was instructed to conclude proceedings within three months.
