The Gujarat High Court has recently delivered a significant ruling, stating that a Muslim marriage can be dissolved through "Mubaraat" (divorce by mutual consent) even without a written agreement. This decision overturns a previous order by a family court that insisted on a written agreement as a prerequisite for divorce through Mubaraat.

A bench of Justices AY Kogje and NS Sanjay Gowda made this observation while hearing a joint appeal by a couple whose divorce plea was earlier dismissed by a family court in April. The couple had sought a declaration that their marriage was dissolved through Mubaraat under Muslim personal law. The family court had rejected their suit, stating it was not maintainable under Section 7 of the Family Courts Act because there was no written agreement regarding mutual consent for the divorce.

The High Court disagreed with the family court's view, asserting that a written agreement is not essential for recording the dissolution of a marriage in the context of Mubaraat. The court stated that the expression of mutual consent to dissolve the Nikah is sufficient to dissolve the marriage itself. The ruling emphasized that neither the Quran, the Hadith, nor established Muslim personal law practices prescribe that Mubaraat must be reflected in a written agreement.

The court further elaborated that the registration of a Nikah, or a Muslim marriage, is not an essential requirement for marriage under Muslim personal law. The Nikahnama merely recognizes the agreement entered into by the parties during the marriage by uttering the word "Kabul" in the presence of witnesses. This does not make the Nikahnama or the registration of a Nikah an essential part of the marriage process. Similarly, there is no process by which a written agreement is an essential requirement for Mubaraat.

The couple in question had married in 2021 but had been living separately for over a year due to irreconcilable differences. They mutually agreed to dissolve their marriage through Mubaraat. Challenging the family court's decision, they argued that under Shariat (Muslim personal law), a written agreement is not required for such a dissolution of marriage.

The High Court bench, after a detailed hearing and referencing Quranic verses, observed that there is no suggestion that a written agreement of Mubaraat is necessary, nor is there any prevailing practice of maintaining a register to record such an agreement for a mutually dissolved Nikah. The court found error in the family court's finding that a written agreement is a must for divorce, stating that this is not supported by any verse of the Quran, Hadith, or the practice followed among Muslims under personal law.

Expanding on the matter, the court noted that a register is merely maintained, and the Nikahnama issued based on such a register is only a declaration of an agreement between two Muslims to enter into Nikah. However, such registration is not essential to personal law. The High Court directed the family court to reconsider the case on its merits within three months.