Divorce Among Muslims : The Role of Extra-Judicial Divorce

 Divorce Among Muslims : The Role of Extra-Judicial Divorce

Introduction

Family Courts Act, 1984 contains around 23 sections. Sec. 7 of the Act deals with "Jurisdiction" of Family Court. The case explains important features touching the ambit of S.7 of FC Act, 1984 and how divorces among Muslims is dealt with under FC Act, 1984.

Facts and Genesis 

In this case parties were Muslim by religion.  The learned Family Court has dismissed the joint petition filed by the appellant and the respondent seeking a decree of dissolution of their marriage. An appeal was filed before HC. 

Earlier when efforts for mediation failed, the respondent husband, with the consent of the appellant, pronounced Talaq on 24.01.2020, on which date, the parties issued a joint declaration by way of an affidavit. 

The husband argued that while dismissing the petition, the learned Family Court has failed to appreciate that under the Muslim Personal Law currently applicable in India, besides the provision for dissolution of marriage by the Court under Section 2 of the Dissolution of Muslim Marriages Act, 1939, commonly known as the ‘judicial divorce’, the concept of extra-judicial divorce under the Muslim Personal Law is also recognised under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.

Findings and Reasons

HC started by referring clauses ‘b’ & ‘d’ of explanation of Section 7(1) of the Family Courts Act under which the petition seeking declaration regarding dissolution of their marriage was filed by the parties.  From a bare perusal of the aforesaid clause ‘b’, of S.7 (1) of Family Courts Act, 1984 it was evident that the learned Family Court is competent to entertain a suit seeking declaration regarding the validity of a marriage as also regarding the matrimonial status of any person. This would necessarily imply that the learned Family Court is empowered to declare not only as to whether the parties are lawfully married but also as to whether their marriage stands dissolved by any process envisaged under the law. This declaration would, therefore, include a declaration regarding dissolution of marriage between the parties by way of an extra-judicial divorce by any of the methods prescribed under the Muslim Personal Law.

It was also held that dissolution of marriage by way of Mubaraat under the Muslim Personal Law is duly recognised as one of the modes of extrajudicial divorce. For more details refer Anjum Nayyar v. Yavar Ehsan [2024] GCtR 3143 (Delhi).