Muslim Marriage Can Be Dissolved By Mutual Consent Without Written Agreement | Gujarat HC Rules Family Courts Must Recognise Mubaraat As Maintainable Under Law
Safiya Malik
The High Court of Gujarat Division Bench of Justice A.Y. Kogje and Justice N.S. Sanjay Gowda has set aside the dismissal of a family suit seeking declaration of dissolution of marriage under Muslim Personal Law by way of mubaraat. The court held that "expression of a mutual consent to dissolution of Nikah is sufficient to dissolve the Nikah in itself" and that a written agreement is not a sine qua non for mubaraat. The matter has been remanded to the Family Court at Rajkot to treat the suit as maintainable and to proceed on merits, with a direction to conclude proceedings within three months of receiving the order.
The appeal was jointly preferred by a husband and wife challenging an order dated 19 April 2025 of the Family Court in Family Suit No. 30 of 2025, which had dismissed their suit as not maintainable. The appellants had sought a declaration that their marriage had been dissolved by mutual agreement through the process of mubaraat under the Muslim Personal Law (Shariat) Application Act, 1937.
The marriage between the parties had been solemnised on 15 March 2021 at Chhajana, District Madhubani, Bihar, in accordance with Islamic Shariat and the customs of their caste. They resided in Rajkot following the marriage and had three children aged approximately three years, one year, and seven months. Differences arose between the parties, and they began living separately over a year prior to filing the suit. Attempts at reconciliation by themselves and family elders failed, and they mutually agreed to dissolve the marriage in their future interests.
The appellants approached the Family Court seeking a declaration of dissolution by mubaraat. They contended that Section 7 of the Family Courts Act conferred jurisdiction on the Family Court to declare the status of a marriage and that written agreement was not required under Shariat for mubaraat.
The Family Court dismissed the suit as not maintainable in its present form, reasoning that a written mubaraat agreement was necessary. The appellants challenged this, arguing that under Shariat, a written form was not essential, and mutual agreement sufficed. The learned AGP, appointed to assist the court, submitted that the order was justified but argued that the appellants could refile after complying with formalities. She stated that dissolution by mubaraat required mutual agreement, whether written or not, and cited decisions including a Delhi High Court judgement in MAT.APP. (F.C.) 37/2023.
The AGP provided a flow chart outlining dissolution of Muslim marriage under Personal Law, detailing talaq forms, delegated talaq, khula, and mubaraat. She referred to the Shariat Application Act, 1937, Dr. Paras Diwan's "Family Law," Quranic verses 128–130, Aqil Ahmed's "Mohammedan Law," and the Supreme Court judgment in Zohara Khatoon v. Mohd Ibrahim (1981) 2 SCC 509, all recognising mubaraat as a valid dissolution method by mutual consent without mandatory written form.
The bench recorded that the issue pertained to dissolution of Nikah by mutual understanding, referred to as mubaraat in Muslim Personal Law. The court cited Section 2 of the Shariat Act, which applies personal law to Muslims on matters including "marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat".
Quoting Dr. Paras Diwan, the court noted that in mubaraat, "proposal of divorce may emanate from either side" and that it is an irrevocable divorce requiring the wife to observe iddat. Aqil Ahmed's text described mubaraat as "a mutual discharge from the marriage claims" involving "mutual aversion", distinguished from khula which originates from the wife and involves consideration.
The court referred to Quranic verse 130 as supporting mutual separation: "And if they separate, Allah will render them both free from want out of His ampleness."
It cited the Supreme Court in Zohara Khatoon recognising three distinct dissolution modes, including "by an agreement between the husband and the wife" where both desire separation — mubaraat.
The bench stated: "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 rejected the Family Court's view that written form was essential, holding that "expression of a mutual consent to dissolution of Nikah is sufficient to dissolve the Nikah in itself."
The court found the prayer in the family suit sought only recognition and declaration of mubaraat, a triable issue within the Family Court's jurisdiction under Section 7.
It relied on Karnataka High Court's decision in Shabnam Parveen Ahmad v. Mohammed Saliya Shaikh (MFA No. 4711/2022), which held that Family Courts are duty-bound to accept and declare dissolution by mubaraat agreement under Shariat Law. It also referred to Delhi High Court's MAT.APP.(F.C.) 37/2023, which issued guidelines for petitions under Section 7 seeking declaration of extra-judicial divorce under Muslim Law.
Allowing the appeal at the admission stage, the court set aside the order dated 19 April 2025 in Family Suit No. 30 of 2025. It remanded the matter to the Family Court at Rajkot "to consider the family suit treating it to be maintainable and to proceed on merits." The bench directed that, "With due regard to the age and future prospects of both the parties, the Family Court [is] to conclude the proceedings as expeditiously as possible preferably within a period of three months from the date of receipt of the order of this Court."
Before parting, the court recorded appreciation for the learned AGP's assistance in drawing attention to scriptures and precedents.
Advocates Representing the Parties
For the Appellants: Mr. Samrat R. Upadhyay, Advocate
For the Respondents: Ms. Urvashi Purohit, AGP
Case Title: XXX v None
Neutral Citation: 2025: GUJHC:46034-DB
Case Number: R/First Appeal No. 1709 of 2025
Bench: Justice A.Y. Kogje, Justice N.S. Sanjay Gowda
