- The Rajasthan High Court upheld a Muslim couple's divorce by mutual consent as fully valid
- The family court had dismissed the wife's petition due to lack of witness proof and cruelty evidence
- Guidelines were issued for family courts to ensure free will and record written divorce agreements
The Rajasthan High Court held the divorce of a Muslim couple by mutual consent fully valid, overturning a family court's order wherein the wife's petition had been dismissed.
The High Court's Jodhpur Bench held that when both the husband and wife agree on divorce by mutual consent (Mubaraat), the family court should not refuse the dissolution of marriage on technical grounds.
A division bench of Justices Arun Monga and Yogendra Kumar Purohit passed the landmark judgment relating to Muslim Personal Law, calling the case an living example of the phrase 'miya biwi raze, nahi maan raha qazi' (the husband and wife have agreed, but the judge disagrees). The court said that when both parties agree on a divorce, the unnecessary interference of the lower court is not justified.
The petition in the High Court was filed after the family court dismissed the wife's divorce petition, stating that the presence of two witnesses in the divorce process was not proven and that concrete evidence of cruelty had not been presented.
The High Court noted that the husband had pronounced the divorce in three separate periods, which the wife had also accepted. After that, both parties entered a written divorce agreement by mutual consent on August 20, 2024. The Mubaraat mentioned the dower (mahr), maintenance during iddat (a waiting period for Muslim women after divorce during which she cannot remarry), and alimony.
Further, the presence of witnesses is not mandatory for divorce under Sunni Muslim law, the court held. The Bench also said that the family court had incorrectly applied judgments related to Shia law, adding that the court's duty is to ensure that consent was given without coercion.
The judgment also reaffirmed that Mubaraat is a valid method of divorce under Muslim law. In such cases, the family court has the power to declare the status of the marriage and should exercise this power.
The High Court also issued guidelines for family courts in Rajasthan, according to which statements should be recorded in the personal presence of both parties to ascertain their free will, and the written divorce agreement should be taken on record.
With inputs from Arun Harsh
