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Dissolution of marriage by mutual consent permissible under Muslim Personal Law

Dissolution of marriage by mutual consent permissible under Muslim Personal Law

Shaikh Taslim Shaikh Hakim Vs The State of Maharashtra

Bombay HC

29/03/2022

CRIMINAL APPLICATION NO. 166 OF 2022

About/from the judgment:

Observing that a family court can dissolve the marriage of a Muslim couple by mutual consent under the Muslim Personal Law, the High Court quashed criminal proceeding against the husband based on the couple's amicable settlement in the Family Court petition.

The court noted that under Section 2 of the Muslim Personal Law (Shariat) Act 1937 all property, marriage, dissolution of marriage including mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties concerning Muslims is governed by the Act.

Moreover, the Family Court was empowered to adjudicate a suit regarding validity of a marriage or a person's matrimonial status under section 7 (1)(b) of the Family Courts Act, the bench said.

"….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," the court said in its order.

Thereafter based, on the Supreme court Judgement in Kulwinder Singh's which states that cases arising from matrimonial discord can be quashed in case of settlement, quashed the present proceedings.

Facts of the Case

The husband sought quashing of an FIR registered with the Parbhani police for the offences punishable under sections 498(A), 323, 504, 506 of the Indian Penal Code and also the consequential charge-sheet on the ground that the parties have arrived at amicable settlement.

The husband submitted that the couple got separated by mutual consent and accordingly approached the Family Court, Parbhani for declaration of their matrimonial status in terms of provisions of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with section 7(1)(b) Explanation (b) of the Family Courts Act, 1984.

On March 9, 2022 the Family court judge allowed the petition and declared their status as they are no more husband and wife in terms of the mutual agreement between them. The wife gave her consent for quashing the criminal proceedings after she received Rs. 5 lakhs as full and final settlement.

Prosecutor relied on the Supreme Court judgement in the case of Zohara Khatoon Vs. Mohd. Ibrahim, (1981) 2 SCC 509, to say that mubarat (divorce initiated by the woman) is a form of extrajudicial divorce based on mutual consent under Islamic Law and same is valid, as it remains untouched by the Dissolution of Muslim Marriages Act.

According to the judgement, there are three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and the wife terminated so as to result in an irrevocable divorce.

(1)Where the husband gives divorce according to any of the forms approved by the Mahomedan law, viz, Talaq ahsan which is a single pronouncement of divorce during tuhar (Period between menstruations) followed by abstinence from sexual intercourse for the period of iddat. Others are Talak hasan and Talak-ul-bidaat or talalk-i-badai which consists of three pronouncements made during a single tuhr either in one sentence or in three sentences signifying a clear intention to divorce the wife.

(2) By an agreement between the husband and the wife whereby a wife obtains divorce by relinquishing either her entire or part of the dower. This mode of divorce is called 'khula' or Mubarat. Where, however, both parties agree and desire a separation resulting in a divorce, it is called mubarat.

(3) By obtaining a decree from a civil court for dissolution of marriage under s. 2 of the Act of 1939 which also amounts to a divorce (under the law) obtained by the wife. For the purpose of maintenance, this mode is governed not by clause (b) but by clause (c) of sub-section (3) of s. 127 of the 1973 Code; whereas the divorce given under modes (1) and (2) would be covered by clause (b) of sub-section (3) of s. 127."

The court said "It appears that the parties have arrived at amicable settlement voluntarily," and therefore quashed the criminal cases against the husband.

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