Madras High Court
Mohamed Saif Pasha vs Madiha Arif
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
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. https://www.mhc.tn.gov.in/judis/ 1/18 C.R.P.(NPD).No.161 of 2021
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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(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 https://www.mhc.tn.gov.in/judis/ 3/18 C.R.P.(NPD).No.161 of 2021 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, https://www.mhc.tn.gov.in/judis/ 5/18 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 https://www.mhc.tn.gov.in/judis/ 6/18 C.R.P.(NPD).No.161 of 2021 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 https://www.mhc.tn.gov.in/judis/ 7/18 C.R.P.(NPD).No.161 of 2021 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 https://www.mhc.tn.gov.in/judis/ 8/18 C.R.P.(NPD).No.161 of 2021 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 https://www.mhc.tn.gov.in/judis/ 9/18 C.R.P.(NPD).No.161 of 2021 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 https://www.mhc.tn.gov.in/judis/ 10/18 C.R.P.(NPD).No.161 of 2021 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. ...." https://www.mhc.tn.gov.in/judis/ 11/18 C.R.P.(NPD).No.161 of 2021
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. https://www.mhc.tn.gov.in/judis/ 12/18 C.R.P.(NPD).No.161 of 2021
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 https://www.mhc.tn.gov.in/judis/ 13/18 C.R.P.(NPD).No.161 of 2021 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 https://www.mhc.tn.gov.in/judis/ 14/18 C.R.P.(NPD).No.161 of 2021 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 https://www.mhc.tn.gov.in/judis/ 15/18 C.R.P.(NPD).No.161 of 2021 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 https://www.mhc.tn.gov.in/judis/ 16/18 C.R.P.(NPD).No.161 of 2021
1. The Principal District Munsif, Alandur.
2. The Section Officer, V.R.Section, High Court, Madras https://www.mhc.tn.gov.in/judis/ 17/18 C.R.P.(NPD).No.161 of 2021 V.BHAVANI SUBBAROYAN, J., dm/ssd C.R.P.(NPD).No.161 of 2021 .04.2021 https://www.mhc.tn.gov.in/judis/ 18/18