C.R.P.(NPD).No.

161 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : .04.2021

CORAM

THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

C.R.P.(NPD).No.161 of 2021

Mohamed Saif Pasha ... Petitioner

Vs.

Madiha Arif ... Respondent

Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of
India, to set aside the fair and decreetal order dated 28.09.2020 passed in
O.S.SR.No.744/2020 by learned Principal District Munsif, Alandur.

For Petitioner : Ms.Abitha Banu

ORDER

This Civil Revision Petition has been filed to set aside the fair and

decretal order dated 28.09.2020 passed in O.S.SR.No.744/2020 by the learned

Principal District Munsif, Alandur, by raising various grounds.

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2. The case of the petitioner is that the petitioner is the plaintiff and the

respondent is the defendant in the O.S.Sr.No.744 of 2020 and they are married, as

per the Muslim Personal Law (Shariat) Application Act, 1937 on 01.12.2018. The

marriage was solemnized by their parents, as it is an arranged marriage. After the

said marriage, both the parties were not living happily and there was a

misunderstanding between them and total peace was lost. They started living in

separate rooms within the same premises for about 8 months and the respondent

had left the matrimonial home on 07.08.2019 and they are residing separately

from that day onwards. The family members of both the parties have joined

together on 29.07.2019 and they tried to resolve the issue amicably. But the

parties could not arrive at a settlement. Hence, on 29.07.2019 they have come to

the real fact that both the parties are not willing to live with each other. The

respondent has clearly expressed that she did not want to live with the petitioner.

As they could not resolve the issue, the parties had decided that they wanted to

dissolve the marriage between them. Both the parties have entered into an

agreement to dissolve the marriage that held on 01.12.2018 by a MOU dated

24.10.2019 on the following terms:-

"(a) The parties have decided to get separated due to incompatibility.

(b) No reconciliation could be arrived between the parties inspite of best
efforts taken by the elders of both the families.
(c) The Defendant while leaving her matrimonial home had taken all the
jewels and materials.

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 C.R.P.(NPD).No.161 of 2021

(d) No materials of the Defendant are lying in the house of the party of
the Plaintiff.
(e) The Defendant has agreed to receive Rs.3,00,000/- from the Plaintiff
as full and final settlement and agreed to get separated.
(f) Both the parties agree that they will approach the appropriate court at
Chemmenchery where the marriage was solemnized to obtain a
decree for divorce in terms of this settlement.
(g) There are no other claims between the parties.
(h) Both the parties confirm that they have not filed any cases both civil
and criminal in any court of law or any other forum. Further both
the parties agree that they will withdraw all the cases both civil and
criminal pending if any.
(i) Both the parties are free to get married and proceed with their life.
Both the parties assure that they will not interfere in each other's life
in future."
3. Since they were not living for a long time, they decided to obtain a

decree by presenting the same before the Court below. The suit was filed before

the learned Principal District Munsif, Alandur seeking for a prayer to declare that

the marriage solemnized between the plaintiff and defendant made on 01.12.2018

is dissolved in terms of MOU dated 24.10.2019 entered between them and pass

any other orders suitable.

4. The Court below, after hearing the counsel appearing for the

petitioner/plaintiff regarding the matter, has posted the case for maintainability.

Suo-motu was re-opened for fresh arguments on the plaintiff's side and fresh
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arguments were not heard and the Court below has rejected the said plaint filed by

the petitioner/plaintiff. The Court below has returned the said plaint on the ground

that how the suit is maintainable by the plaintiff/husband when there is a Family

Court in this District, necessary court fees to be paid on plaint, C.D. to be

enclosed, mobile number and enrollment number to be furnished, additional set of

documents to be filed, copy of plaint to be filed, additional docket sheet to be

enclosed and date kept blank in M.O.U.

5. The cause of action was arose in Chemmencherry and re-presented

the same on the ground that the marriage had taken place at Chemmencherry and

they last resided together at Chemmencherry and the said jurisdiction falls within

the jurisdiction of the said court and re-presented the same, again the same was

returned stating that both the parties agreed for separation and the plaintiff has

filed suit for declaration that marriage solemnized between the plaintiff and

defendant is dissolved in terms of MOU. The marriage took place at

Chemmencherry, hence, they re-presented the same. Plaint was returned stating

that the citation to be filed with regard to dissolution of marriage by

plaintiff/husband and the Muslim/Husband can file suit for dissolution of

marriage before Munsif Court.

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6. Again, it was returned and the same was complied with. Again,

citation was filed for maintainability. The Court below has referred the Central

Government Act (The Dissolution of Muslim Marriages Act, 1939), according to

which, a women married under Muslim Law shall be entitled to obtain a decree

for the dissolution of her marriage on any one or more of the following grounds:-

"(i) that the whereabouts of the husband have not been known for a
period of four years;
(ii) that the husband has neglected or has failed to provide for her
maintenance for a period of two years;
(iii) that the husband has been sentenced to imprisonment for a period
of seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause,
his marital obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage and
continues to be so;
(vi) that the husband has been insane for a period of two years or is
suffering from leprosy or virulent venereal disease;
(vii) that she, having been given in marriage by her father or other
guardian before she attained the age of fifteen years, repudiated
the marriage before attaining the age of eighteen years;
"Provided that the marriage has not been consummated;
(viii) that the husband treats her with cruelty, that is to say,-
"(a) habitually assaults her or makes her life miserable by cruelty
of conduct even if such conduct odes not amount to physical ill-
treatment,
(b) associates with women of evil repute or leads in infamous life,

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 C.R.P.(NPD).No.161 of 2021

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal
rights over it,
(e) obstructs her in the observance of her religious profession or
practice,
(f) if he has more wives than one, does not treat her equitably in
accordance with the injunctions of the Quran;
(ix) on any other ground which is recognised as valid for the
dissolution of marriages under Muslim Law; "Provided that-
(a) no decree shall be passed on ground (iii) until the sentence
has become final;"
(b) a decree passed on ground (i) shall not take effect for a period
of six months from the date of such decree, and if the husband
appears either in person or through an authorised agent within
that period and satisfies the Court that he is prepared to perform
his conjugal duties, the Court shall set aside the said decree; and
(c) before passing a decree on ground (v) the Court shall, on
application by the husband, make an order requiring the husband
to satisfy the Court within a period of one year from the date of
such order that he has ceased to be impotent, and if the husband
so satisfies the Court within such period, no decree shall be
passed on the said ground."

7. The Court below has referred the judgment of the Hon'ble High

Court of Karnataka in Zuber -vs- Mahezabeen (Miscellaneous First Appeal

No.200834/2019 (FC)) and come to a conclusion that the Dissolution of Muslim

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Marriage Act, 1939 permits a wife to bring a suit for divorce, but the husband

cannot prefer a suit and that a Muslim husband cannot approach the Court for

decree of divorce, as per Section 307 of Mulla's Commentary on Mohammedan

Law and rejected the said plaint on the following circumstances:-

"(a) Where it does not disclose a cause of action.

(b) Where the relief claimed is under valued and the plaintiff, on being
required by the court to correct the valuation within a time to be
fixed by the court, fails to do so.
(c) Where the relief claimed is properly valued but the plaint is written
upon paper insufficiently stamped, and the plaintiff, on being
required by the court to supply the requisite stamp paper within a
time to be fixed by the court, fails to do so.
(d) When the suit appears from the statement in the plaint to be barred
by any law.
(e) When it is not filed in duplicate.
(f) Where the plaintiff fails to comply with the provisions of rule."

8. Aggrieved by the said order, the petitioner has filed the present civil

revision petition on the ground that the petitioner and the respondent are lawfully

married persons and they entered into a MOU dated 24.10.2019 and agreed for

the mutual separation between the parties on the following terms:-

"(a) The parties have decided to get separated due to incompatibility.

(b) No reconciliation could be arrived between the parties inspite of best
efforts taken by the elders of both the families.
(c) The Defendant while leaving her matrimonial home had taken all the
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jewels and materials.

(d) No materials of the Defendant are lying in the house of the party of
the Plaintiff.
(e) The Defendant has agreed to receive Rs.3,00,000/- from the Plaintiff
as full and final settlement and agreed to get separated.
(f) Both the parties agree that they will approach the appropriate court at
Chemmenchery where the marriage was solemnized to obtain a
decree for divorce in terms of this settlement.
(g) There are no other claims between the parties.
(h) Both the parties confirm that they have not filed any cases both civil
and criminal in any court of law or any other forum. Further both
the parties agree that they will withdraw all the cases both civil and
criminal pending if any.
(i) Both the parties are free to get married and proceed with their life.
Both the parties assure that they will not interfere in each other's life
in future."

9. As per the above mentioned terms, both the parties are not living

together and there was no chance of getting together in future. It is stated that the

petitioner decided to dissolve the marriage and he seeks for declaration that the

marriage to be declared as null and void.

10. The learned counsel for the petitioner submitted that as per the

Muslim Personal Law, dissolution of marriage can be brought about by various

means which includes Talaq, Khula and Mubarat. Talaq is a form of divorce

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proposed by the husband to the wife. Khula is a form of divorce proposed by the

wife to the husband. Mubarat is a form of divorce proposed by both the parties

and they decide mutually to put an end to their tie. In the said form of Mubarat,

there is no need for specifying any reasons for getting a divorce. It is stated that

the wife and husband together decide among themselves to separate on a no

fault/no blame. Learned counsel for the petitioner has relied various judgments to

sustain her pleadings.

(i) The Judgment of Hon'ble Supreme Court reported in

MANU/SC/0861/2014, [Juveria Abdul Majid Patni -vs- Atif Iqbal Mansoori]

wherein it is held that in India, the confusion with regard to application of

customary law as part of Muslim Law was set at rest by the enactment of the

Muslim Personal Law (Shariat) Application Act, 1937 and Section 2 of the said

Act reads as under:-

"2. Application of Personal Law to Muslims.-

Notwithstanding any customs or usage to the contrary, in all
questions (save questions relating to agricultural land) regarding
intestate succession, special property of females, including
personal property inherited or obtained under contract or gift or
any other provision of Personal Law, marriage, dissolution of
marriage, including talaq, ila, zihar, lian, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and trust
properties, and wakfs (other than charities and charitable
institutions and charitable and religious endowments) the rule of

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decision in cases where the parties are Muslims shall be the

Muslim Personal Law (Shariat)."

(ii) The Judgment C.Mohd. Yunus -vs- Syed Unnissa reported in

MANU/SC/0359/1961 : (1962) 1 SCR 67, the Court has held that what is also

of great significance is the expression - `dissolution of marriage, including talaq,

ila, zihar, lian, khula and mubaraat'. This gives statutory recognition to the fact

that under muslim personal law, a dissolution of marriage can be brought about

by various means, only one of which is talaq. Although islam considers divorce to

be odious and abominable, yet it is permissible on grounds of pragmatism, at the

core of which is the concept of an irretrievably broken marriage. An elaborate

lattice of modes of dissolution of marriage has been put in place, though with

differing amplitude and width under the different schools, in an attempt to take

care of all possibilities. Khula, for example, is the mode of dissolution when the

wife does not want to continue with the marital tie. She proposes to her husband

for dissolution of the marriage. This may or may not accompany her offer to give

something in return. Generally, the wife offers to give up her claim to Mahr

(dower). Mubaraat is where both the wife and husband decide to mutually put an

end to their marital tie. Since this is a divorce by mutual consent, there is no

necessity for the wife to give up or offer anything to the husband. It is important

to note that both under khula and mubaraat there is no need for specifying any

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reason for the divorce. It takes place if the wife (in the case of khula) or the

husband or together wife and husband together (in the case of mubaraat) decide to

separate on a no fault/no blame basis.

(iii). The Judgment of Hon'ble Supreme Court reported in (1981) 2

Supreme Court Cases [Zohara Khatoon -Vs- Mohd. Ibrahim], here also, it is

stated that it would appear that under the Mahomedan law that 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:

"(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.
This form of divorce is initiated by the wife and comes into existence if
the husband gives consent to the agreement and releases her from the
marriage tie. Where, however, both parties agree and desire a
separation resulting in a divorce, it is called mubarat. The gist of
these mode is that it comes into existence with the consent of both the
parties particularly the husband because without his consent this
mode of divorce would be incapable of being enforced. A divorce may
also come into existence by virtue of an agreement either before or
after the marriage by which it is provided that the wife should be at
liberty to divorce herself in specified contingencies which are of a
reasonable nature and which again are agreed to be the husband. ...."

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11. Learned counsel for the petitioner has submitted that the Hon'ble

Apex Court has observed different modes of dissolution of marriage under the

Muslim Personal Law (Shariat), when both the parties shall desire for separation

by entering into a Memorandum of Understanding, which is resulting in a

divorce, it is called Mubarat and the Court on the basis of the same can declare

the marriage as null and void, thereby pleaded to allow the petition.

12. Heard the learned counsel for the petitioner and perused the

documents placed on record.

13. On perusal of the affidavit filed by the petitioner and the order

passed by the court below, it is seen that the petitioner and the respondent are

living separately from 29.07.2019 and they have entered into an Memorandum of

Understanding on 24.10.2019, however, as per the aversion of the petitioner, right

from the date of marriage they were not living happily, viz., 01.12.2018.

14. This Court finds some force in the submission of the learned

counsel for the petitioner, because of the reason that when both the parties, viz.,

husband and wife are not willing to live together and filed an MOU, the court

below ought to have granted the prayer of the petitioner in the light of decision

rendered by the Hon'ble Supreme Court mentioned supra.

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15. That apart, at this juncture, it is relevant to point out the Judgment

rendered by the Hon'ble Division Bench of High of Kerala, Ernakulam in

Mat.Appeal.72/2021, OP (FC).372/2020, OP (FC).124/2021, OP

(FC).133/2021 etc., batch dated 09.04.2021, wherein the Hon'ble Division

Bench has categorically dealt with the said cases and the same squarely applies to

the facts and circumstances of the present case on hand. Also, this Court being

bound by the said Judgment is inclined to follow the same by quoting the relevant

provisions, which are applicable to the facts and circumstances of the present

case.

16. As a matter of fact, there are four major forms of dissolution of

marriages, as recognized under Islamic Law and protected under the Shariat Act

at the instance of the wife, they are:-

i. Talaq-e-tafwiz
ii. Khula
iii. Mubara'at
iv. Faskh
v. Talaq-e-tafwiz:

Since this case falls under 'Mubaraat', the said portion is extracted hereunder:
Mubaraat: Mubaraat is a form of separation by mutual consent. Dr.Justice

Kauser Edappagath (12) after referring to many authorities refers to 'mubaraat' as

dissolution of marriage by common consent of the spouses. The learned author

further states thus:-

“The word mubaraat indicates freeing of each other (from the

marriage tie) by mutual agreement. No formal form is insisted upon
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for mubaraat by the Sunnis. The offer may come from either side.
When both the parties enter into mubaraat, all mutual rights and
obligations come to an end. Both Shia and Sunni laws hold it an
irrevocable divorce. Iddat is compulsory after mubaraat as after
khula. Under Sunni law, when both the parties enter into mubaraat,
all matrimonial rights which they possess against each other fall to
the ground.”
'Divorce and Gender Equity in Muslim Personal Law of India'

Dr.Mufti Samiya Tabasum(13) states that Mubaraat is a dissolution of marriage

contract by mutual consent. Chapter IV verses 128 to 130 Quran apparently refers

to dissolution of marriage by mutual consent when an attempt to resolve the

differences through conciliation fails. It is appropriate to refer verses 128 to 130

which read thus:

“128. If a woman feareth ill-treatment from her husband, or

desertion, it is no sin for them twain if they make terms of peace
between themselves. Peace is better. But greed hath been made
present in the minds (of men). If ye do good and keep from evil, lo!
Allah is ever Informed of what ye do.
129. Ye will not be able to deal equally between (your) wives,
however much ye wish (to do so). But turn not altogether away (from
one), leaving her as in suspense. If ye do good and keep from evil, lo!
Allah is ever Forgiving, Merciful.
130. But if they separate, Allah will compensate each out of His
abundance. Allah is ever All-Embracing, All-Knowing.”

17. Coming to the present case on hand, the learned Principal District
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Munsif, Alandur has refused to entertain the petition in the light of provisions

under Order VII Rule 11(d) of CPC and the Judgment of High Court of Karnataka

in Miscellaneous First Appeal No.200834/2019(FC) [Zuber Vs. Mahezabeen] and

the same is challenged in the present revision. It appears that the petitioner filed

O.S. before the learned Principal District Munsif at Alandur to declare that the

Marriage solemnized between the petitioner and respondent on 01.12.2018 to be

dissolved in terms of MOU entered between them. However, the same was

returned several times for want of several reasons and thereafter, the said petition

was dismissed even without numbering the petition. As already mentioned

supra, the Hon'ble Division Bench of High Court of Kerala at Ernakulaam, had

categorically held that 'mubaraat' is a form of an extra-judicial divorce based on

mutual consent under Islamic law and same is valid, as it remains untouched by

the Dissolution of Muslim Marriages Act. The court below, in such

circumstances, is neither called upon to adjudicate nor called upon to dissolve the

marriage by decree of divorce. On the other hand, the Family Court only has to

declare the marital status by endorsing the mubaraat invoking jurisdiction under

Explanation (b) of Section 7(1) of the Family Courts Act. Once a declaration of

joint divorce invoking mubaraat is produced before the Family Court, the Family

Court has to pass a decree declaring the matrimonial status of the parties. The

inquiry in such cases is limited to the extent to find out whether both parties have

agreed upon to dissolve such marriage invoking mubaraat. Once the Family Court

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is satisfied that mubaraat is executed by both the parties, it shall declare the

matrimonial status of such parties. Hence, this Court is of the considered view

that the Family Court is bound to entertain a petition for declaration of the status

based on mubaraat.

In view of the above, the order passed by the learned Principal District

Munsif, Alandur in O.S.Sr.No.744/2020 dated 28.09.2020 is set aside and the

parties are at liberty to approach the concerned Family Court with appropriate

jurisdiction. Thereafter, the concerned Family Court shall dispose of the matter,

if both the parties have filed petition and after making a formal inquiry without

any further delay treating it as an uncontested matter in the light of the guidelines

issued by the Hon'ble Division Bench, High Court of Kerala, Ernakulam in the

judgment in O.P. (FC).No.352/2020 and connected cases dated 23/3/2021 and the

present Civil Revision Petition is allowed. No costs.

.04.2021
dm / ssd
Index : yes/no
Internet : yes/no
Speaking Order/Non-Speaking Order

To

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1. The Principal District Munsif,

Alandur.

2. The Section Officer,

V.R.Section,
High Court, Madras

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V.BHAVANI SUBBAROYAN, J.,

dm/ssd

C.R.P.(NPD).No.161 of 2021

.04.2021

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