Muslim marriage can be dissolved through verbal mutual consent: Gujarat High Court

The Gujarat High Court has ruled that a Muslim marriage can be dissolved through Mubaraat (mutual consent divorce) even without a written agreement for such a divorce.

A Bench of Justice AY Kogje and Justice NS Sanjay Gowda made the observation while overturning a family court order which held that a written agreement to dissolve the marriage was necessary to seek divorce by Mubaraat. The High Court disagreed with the family court's view.

"The Court does not find that recording of an agreement between the parties to the Nikah in any written format is essential for recording the fact of dissolution of marriage. For the purpose of Mubaraat, the expression of a mutual consent to dissolution of Nikah is sufficient to dissolve the Nikah in itself," the High Court's July 23 ruling said.

The High Court pointed out that there was no condition prescribed in the Quran, Hadith (collection of traditions arising from the Quran), or established Muslim personal law practices that a Mubaraat must be reflected in a written agreement.

It added that even the registration of a nikah or a Muslim marriage, does not mean that such registration is an essential requirement for marriage under Muslim personal law.

“Nikahnama only recognizes the agreement entered into by the parties to the marriage by uttering the words ‘Kabul’ in presence of the witness that does not make a Nikahnama or registration of a Nikah part of an essential process of Nikah. Similarly, there is no process by which the written agreement is essential requirement for  Mubaraat," the Court said.

The Court was dealing with a joint appeal filed by an estranged couple, whose divorce plea was dismissed by the family court in April.

The Muslim couple had sought a declaration that their marriage had been dissolved through Mubaraat under Muslim personal law.

The couple married in 2021, but had been living separately for over a year due to irreconcilable differences. They mutually agreed to dissolve the marriage and opted to get divorced by Mubaraat.

However, a family court held their divorce plea was not maintainable as a written Mubaraat agreement was necessary to seek divorce by this route. This was challenged before the High Court by the couple, who argued that under Shariat (Muslim personal law), such a dissolution of marriage does not require a written agreement.

The High Court examined Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, and explained that Mubaraat occurs when both spouses mutually agree to separate, unlike Khula, which is initiated by the wife.

The Court went on to note that neither the Quran nor Muslim personal law mandates a written agreement or official registration to dissolve a marriage by Mubaraat.

"In the available literature, there is nothing to suggest that there has to be a written agreement of Mubaraat nor there is a practice prevailing regarding maintaining of the register to record such agreement for mutually dissolved Nikah," it said.

It, therefore, set aside the family court's earlier refusal to entertain the divorce plea and directed it to examine the same on merits within three months.

Advocate Samrat R Upadhyay appeared for the appellants.

Assistant Government Pleader Urvashi Purohit appeared for the State.

[Read Order]