Jharkhand High Court
Asad Anwar vs State Of Jharkhand & Anr ...... Opposite ... on 5 December, 2018
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B. A. No. 4252 of 2018
Asad Anwar ...... Petitioner
Versus
State of Jharkhand & Anr ...... Opposite Party
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CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
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For the Petitioner : Mr. A.K.Lall, Advocate
For the State : A.P.P
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04/Dated: 05/12/2018
Under dated 03.10.2018, the matter was referred to the JHALSA, Nyay Sadan, Ranchi for mediation between the parties.
Perused the report the Mediator dated 03.12.2018, which reveals that the mediation is successful and the parties have entered into an agreement and also drawn the terms of agreement, which was duly signed by them.
According to the agreement, parties have agreed to resolve their marriage by way of Khula. The Khula and Mubara'at is defined under section 319 of the Mulla Principles of Mahomedan Law, which reads as under :
"319 Khula and mubara'at- (1) A marriage may be dissolved not only by talak, which is the arbitrary act of the husband, but also by agreement between the husband and wife. A dissolution of marriage by agreement may take the form of Khula or mubara'at.
(2)A divorce by Khoola is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as the consideration, release her dyn- mahr(dower) and other rights, or make any other agreement for the benefit of the husband"(r).Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce(s), though the husband may sue the wife for it.
A khula divorce is e ffected by an offer from the wife to compensate the husband if he release her from her marital rights, and acceptance by the husband of the offer. Once the offer is accepted, It operates as a single irrevocable divorce( talak-i- bain)[ ss311(3),312] nd its operation is not postponed until execution of the Khulanama (deed of Khula)(t)"
(3) A mubara'at divorce like khula, is dissolution of marriage by agreement, but there is a differences between the origin of the two.
When the aversion is on the side of the wife, and she desires a separation, the transaction is called Khulla. When the aversion is mutual and both the sides desire a separation, the transaction is called mubara'at. The offer in a mubara'at divorce may proceed from the wife , or it may proceed from the husband, but once it is accepted, the dissolution is complete, and it operates as a talak-i-bain as in the case of khula.
(4) As a talak, so in khula and mubara'at, the wife is bound to observe the iddat, as stated in se. 257 above(u)."
Further, it is also agreed that petitioner shall visit his son namely, Ars Asad for four hours within 45 days under the guardianship of O.P.No.2 within 45 days only in a day.
Further, parties have one son namely, Arsh Asad aged about 7 years, a student of Class-I, but there is no whisper regarding the expenses to be incurred for education, health and other expense for their son, so the agreement is required to be re-casted.
O.P.No.2 is directed to file affidavit bringing on record about the expenses of her son Arsh Asad latest by 18.12.2018 and the petitioner is also directed to file rejoinder to the said affidavit.
List this case on 08.01.2019. On that date, the petitioner and O.P.No.2 are directed to remain physically present before this Court, so that in their presence appropriate order may be passed.
Till then, interim relief granted earlier shall continue. Let a copy of this order be communicated to the court below.
( Anant Bijay Singh, J.) Raman/