In Criminal Application No.166 Of 2022-BOM HC-Family Court’s decision to grant divorce based on mutual consent under Muslim Personal Law confirmed by Bombay HC Justices V.K. Jadhav & Sandipkumar C. More[29-03-2022]

Read Order:  SHAIKH TASLIM SHAIKH HAKIM Vs. THE STATE OF MAHARASHTRA AND ANOTHER

Mansimran Kaur

Mumbai, April 7, 2022: The Aurganbad Bench of the Bombay High has upheld the decision of the Family Court granting divorce to a couple on the basis of mutual consent in accordance with the Muslim Personal Law (Shariat )  Act,1937 and  directed that the FIR, filed against the applicant-husband under Sections 498A, 323,  504, and 506 of the Indian Penal Code, be quashed.

The Division Bench of Justice V.K. Jadhav and Justice Sandipkumar C.More said, “It thus appears that the learned Judge of the Family Court has rightly applied the provisions of Muslim Personal Law (Shariat) Application Act, 1937 to the parties before us and accordingly declared the status of marriage as no more in existence by mutual consent.”

Brief facts of the case were that the applicant-husband and the second respondent-wife got separated  on the basis of mutual consent and on account of the same they approached the Family Court, Parbhani. The Family Court allowed the petition and declared them to be no more as husband and wife in accordance with the Section 2 of Muslim Personal Law Act, 1937 read with Section 7  (1) (b) Explanation (b) of the Family Court Act, 1984. The order was passed on March 9, 2022. It was also stated that the applicant- husband should pay Rs 5 lakh to the respondent-wife as maintenance. 

By way of affidavit, the Counsel for the second respondent vividly stated that the wife was no more interested in furthering the criminal proceedings arising out the the offences alleged in the FIR filed against the applicant. The Counsel also cited the judgment of the Apex Court in  Mst. Zoban Khatoon v. Mohd. Ibrahim wherein it was held that ‘mubarat’ is the form of an extra- judicial divorce by mutual consent and the same is acknowledged under the Islamic law and the provision of the Dissolution of Marriage Act shall not intervene with the same. 

The applicant-husband sought quashing of FIR and also consequential charge-sheet pending before the Judicial Magistrate, First Class, Parbhani, on the ground that the parties had arrived at an amicable settlement.

The Court went through the allegations made in the FIR and the police papers. The Court was of the view that the parties decided to get separated on the basis of mutual consent in furtherance of which the petition was filed under Section 2 of the Muslim Personal Law (Shariat Act), 1937 read with Section 7 (1) (b) of the Fmaily Courts Act ,1984 for declaration of their status. 

The Division Bench stated that the issues pertaining to the marriage, property, dissolution of marriage, maintenance, dowr, trusts  and trusts of properties, gifts, etc are decided by the Muslim Personal Law (Shariat) Act, 1937.  The Court also considered Section 7 of the Family Courts Act, 1984 which states that suit for declaration of validity of marriage or as to the  matrimonial status of any person can also fall within the jurisdiction of the  Family Courts.

Further reference was made to Mst. Zohra Khatoon’s Case (Supra) wherein the the Apex Court had stated certain ways of dissolving the marriage under the Muslim Persoanal law. It was mentioned therein that the first way is by reciting of the word “talaq” three times called as “Talaq hasan”, second is “Talaq ahsan” wherein the husband unilaterally gives divorce by single pronouncement and third procedure for obtaining divorce consists of an agreement between the parties wherein the wife relinquishes her entire or part dower on account of seeking divorce. This is called “khula” or “mubarat”. Another mode mentioned in this judgment is to institute a suit for dissolution of marriage under Section 2 of the Family Court Act, 1939, which also amounts to divorce obtained by the wife. 

Considering these factors, the High Court affirmed the decision of the Family Court to declare the status of marriage as no more in existence by mutual consent.

On the issue of quashing of the FIR, the Bench referred to the judgment of the Supreme Court in  Gian Singh vs. State of Punjab and others wherein it was observed that inherent power given to the High Court for quashing the criminal proceedings is distinct from the power granted to the criminal courts for compounding of offences under Section 320. It was also held therein that the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end. 

Thus keeping in view the above stated observations, the Court held that the Family Court had rightly approched the provisions of   the Muslim Personal Law (Shariat) Act, 1937 and allowed the criminal application considering that the parties had arrived at amicable settlement voluntarily.