The Gujarat High Court has affirmed that a Muslim marriage can be dissolved through verbal mutual consent, specifically through a form of divorce known as "Mubaraat". This decision emphasizes that a written agreement is not a mandatory requirement for dissolution of marriage when both parties mutually agree to it.
The ruling came after a lower court in Rajkot denied a couple's divorce application due to the absence of a written agreement. The High Court overturned this decision, clarifying that verbal consent is sufficient under Muslim law for a divorce through Mubaraat.
Mubaraat is a form of extrajudicial divorce recognized under Islamic law, where both husband and wife mutually agree to end the marriage. The Bombay High Court has also acknowledged the validity of Mubaraat as a means of separation based on mutual consent under Muslim Personal Law, further solidifying its standing within the legal framework.
This recent judgment aligns with previous observations made by the Gujarat High Court, which stated that there is no issue in delivering judgments in cases of mutually agreed 'talaq'. In a 2017 case, the High Court addressed a situation where a family court had dismissed an application for a declaration under the Family Court Act, where both parties admitted that talaq had been given and they both agreed to it. Justice Sonia Gokani noted that the couple had been living separately since 2000, and there was no dispute regarding the utterance of "talaq" thrice. The court observed that the couple needed the decree for official documentation purposes and that they sought this recourse in the absence of a provision similar to Section 13-B of the Hindu Marriage Act, which allows for decree by mutual consent for a swift resolution.
The High Court also noted that when parties seek a declaration of marital status in a court of law, whether based on admissions in pleadings or otherwise, the court retains the power to pronounce judgment and decree based on those admissions. The court directed the family court to proceed with the matter, considering that the parties had already been separated for six years, even without a formal application under Order XII, Rule 6 of the Code of Civil Procedure.
It is important to note that while the Gujarat High Court recognizes verbal mutual consent for divorce, specifically through Mubaraat, the Supreme Court of India invalidated the practice of instant triple talaq (talaq-e-bidat) in 2019, and the Parliament subsequently prohibited it through legislation. The Gujarat High Court, in a separate case, has also cited religious texts emphasizing that divorce is considered "most detestable in the sight of God". This suggests that while divorce is permissible, it is not encouraged and should be approached with caution and consideration.
This ruling provides clarity and acknowledges the significance of mutual consent in dissolving Muslim marriages, offering a potentially more straightforward process for couples seeking separation. However, it's also crucial to remember that the legal landscape surrounding marriage and divorce is intricate, and seeking legal counsel is always advisable to ensure compliance with all applicable laws and procedures.
